Audi Dama Masozera Johnson v Secretary of State for the Home Department

The principal claim in this case is for unlawful detention / false imprisonment. It arises out of the Claimant’s immigration detention between 16 February 2014 and 19 June 2015 (a period of some 489 days). The claim is advanced under the following heads:

The Defendant accepts that officials failed to carry out the Claimant’s first detention review in accordance with policy, and that therefore the Claimant’s detention between 17 March 2014 and 10 April 2014 was unlawful. However, the Defendant maintains that the Claimant would have been detained during that period in any event, and that therefore he is not entitled to substantive damages in respect of that period. The Defendant disputes all other aspects of the principal claim, variously submitting, in summary, that:

During the Claimant’s detention, over a two-day period between 9 and 11 December 2014, the Defendant sought unsuccessfully to remove the Claimant to Uganda. The manner in which the attempted removal was conducted was originally the subject of two further heads of claim, namely harassment and misfeasance in public office.

In the afternoon of 20 July 2021, which was the day before the trial was ultimately due to begin, the Defendant disclosed a further 298 pages of fresh evidence - in admittedly late response to an application for specific disclosure.

When the trial began on 21 July 2021, the Claimant indicated that, on pragmatic grounds, he would not further press his application for specific disclosure, and nor would he oppose the Defendant’s application to call an additional witness.

The Claimant then made an application to amend para. 19 of the Amended Particulars of Claim so as to allege, in relation to misfeasance in public office, that the Defendant knew, or ought to have known, that the Claimant would be caused harm (rather than, as then drafted, alarm and/or distress). I refused the application. In the result, the Claimant abandoned reliance on misfeasance in public office.

During the course of the trial I heard evidence from a number of witnesses in relation to the attempted removal that took place between 9 and 11 December 2014. The Claimant gave evidence and called his sister Talatu Masozera. The Defendant called six members of the removal team. The Claimant also gave some broader evidence in relation his detention, which was also dealt with in some detail by the Defendant’s witness Sharon Buckle (a Senior Executive Officer who made some of the detention decisions).

Closing submissions began on 23 July 2021. During the course of his submissions on behalf of the Claimant, Dr Wilcox recognised that the claim of harassment in relation to the events between 9 and 11 December 2014 was essentially a question of fact for me to resolve, and indicated that the Claimant understood that he had a large factual hurdle to overcome in relation to it – given that six witnesses had offered a different account to his own. However, it was submitted that, whatever the Court’s view in relation to unlawful detention, if paragraph 18 of the Amended Particulars of Claim was made out to the requisite standard, harassment would be proved. Further, Dr Wilcox submitted, in short, that the claim for unlawful detention / false imprisonment was made out.

In the course of his submissions on behalf of the Defendant, Mr Deakin asserted, amongst other things that, the harassment claim was unsustainable in principle and on the facts. Later, In relation to The Hardial Singh 2 & 3 claims, he raised the issue of the justiciability of the United Kingdom’s international obligations. In the result, and with time running out, it was agreed that it would be better for further submissions to be made in writing – which would be of the most assistance to the Court and would give the parties an appropriate opportunity for considered reflection. The further submissions were duly exchanged and served by 4pm on 29 July 2021.

For the avoidance of doubt, the Claimant had no permission to rely on expert evidence, and I have therefore ignored the expert report that was included in the trial bundle.

I propose to deal with matters under the following headings:

My findings of fact specific to the claim of harassment are set out in paras 58-63, 68, 70, 71,77, 79, 88 & 145 below. Against the background that it is for the Defendant to prove the lawfulness of detention on the balance of probabilities, I have found the outline facts set out in the remainder of paras 13 – 124 below. Between them, they cover all three heads of the claim for unlawful detention / false imprisonment. I make further findings of fact when dealing with my conclusions in relation to each of the three heads.

On 1 October 1989 the Claimant’s mother, Juliet Masozera, a citizen of Uganda, arrived, along with the Claimant’s two siblings, in the United Kingdom, with six months leave as a visitor. On 24 December 1989 she gave birth to the Claimant at Central Middlesex Hospital, Park Royal. He is now aged 32. His father was Ugandan.

In January 1991 the family claimed asylum, but that was refused in March 1997. In the summer of 2005, the Claimant’s mother (who was represented by solicitors) submitted an application (which was based on long residence) for leave to remain in the United Kingdom with her three children as dependents. The application stated that the Claimant was Ugandan. The Claimant’s UK birth certificate (which showed his place of birth as being the Central Middlesex Hospital) was submitted with the application, together with his original Ugandan passport (which had been issued on 6 September 2002, when the Claimant was aged 12, was due to expire on 6 September 2007, and showed his place of birth as being Rwerere in Uganda). Enquiries by Legacy in 2005 in relation to the discrepancy in the Claimant’s identity (place of birth) were never explained by his mother.

The Claimant’s mother eventually acquired settled status, as did his siblings. However, it appears that the Claimant’s application for Indefinite Leave to Remain was not decided until January 2014, when it was refused (see para. 18 below).

On Christmas Day 2009, the Claimant (who had , by then, amassed a considerable criminal record) took part, with five others, in an aggravated burglary – during the course of which a young family were held up in their own home at imitation gun point and knife point. In September 2010, the Claimant was convicted of the aggravated burglary and of assault. On 10 November 2010, in the Crown Court at Harrow, he was sentenced to a total of 8 years’ detention in a Young Offender Institution. Having been convicted and sentenced in the name Johnson Masozera, the Claimant served his sentence using the name Audi Johnson. During its course he was the subject of a number of adjudications, and was ultimately assessed as being MAPPA Level 2 .

On 9 January 2014, an internal Home Office Note recorded that, given the different places of birth recorded in them, steps had been commenced to check the validity of the Claimant’s UK birth certificate (of which, by then, there were two copies on file) and of his Ugandan passport (of which the original and a copy were on file).

On 17 January 2014 the Claimant’s outstanding application for indefinite Leave to Remain was (as indicated above) refused, and a Notice of Liability to Deportation was faxed to the prison where he was approaching the end of his sentence. The Defendant’s Criminal Casework Division noted the different places of birth recorded in the Claimant’s birth certificate and passport (the latter having long since expired), and the Defendant wrote to the Claimant inviting him to provide reasons as to why he should not be deported. Also, on 17 January 2014, a fax was sent to the Central Middlesex Hospital’s records department to ask them to check the details of the birth certificate, but there was no response at that stage. Indeed (see para. 99 below) the authenticity of the birth certificate was not confirmed until 20 July 2015 (after the Claimant had been released). Miss Buckle’s evidence was that she did not think that the Defendant had ever been clear in relation to the Claimant’s place of birth.

On 22 January 2014 the Claimant was served with the Notice of Liability to Deportation – it having been concluded that he was liable to automatic deportation as he was a foreign criminal and had been sentenced to more than 12 months’ custody. In his response, the Claimant asserted that he was a British citizen.

On 27 January 2014, the Claimant’s detention was authorised in advance under immigration powers. The Minute of Decision to Detain (which was dated that same day, and proceeded upon the basis that the Claimant was a Ugandan citizen) included the following:

“Evidence of previous disregard to immigration law

Mr Masozera gave a false identity to the prison service and claimed to be British. He is recorded as having used 9 alias names.

Mr Masozera has 17 convictions for 30 offences, which include; failing to surrender to custody, breach of conditional discharge and breach of a community order. Which demonstrate that he has failed to comply with the restrictions of the courts. There is no reasons [sic] to indicate that he would comply with immigration restrictions.

Likelihood of removal within a reasonable time scale (outline details of barriers to removal including availability of travel documentation and likely time needed to resolve these)

An ICD 0350A was faxed for service on 17 January 2014. Therefore Mr Johnson is at the beginning of the deportation process. His removal could not be realistically expected to be effected in the near future. There is however a copy of a Ugandan expired passport on file. In the interim period attempts should be made to document Mr Masozera at the earliest opportunity.

Proposal

Mr Masozera’s criminal behaviour can be seen to have escalated; he was convicted of the violent crime of aggravated burglary and was sentenced to 8 years’ imprisonment…….while amongst his other convictions he has an earlier conviction for violence in 2009 for Battery.

…..

He is viewed as posing a real threat to the public, due to his conviction of a serious violent crime. Mr Masozera is a recidivist who has previously not complied with the conditions of his release and orders of the courts. There is no evidence that he would comply with the restrictions of immigration control…”

The Authorisation itself referred to the Claimant’s criminal record and history of non-compliance with authority, and continued:

“Mr Masozera has not been entirely truthful about his identity, he claims to be British but there is a copy of his expired Ugandan passport, issued 06 September 2002, contained on the HO file, which was submitted by his Mother in support of her ILR application in 2005. Previous enquiries by Legacy in 2005 in relation to the discrepancy in Mr Masozera’s identity were never explained by his mother.

I have considered the presumption of liberty in this case and the facts as they are presented. Further investigation should be made into Mr Masozera’s identity, and a decision made on his case at the earliest opportunity.”

On 29 January 2014 the Defendant wrote to the Claimant pointing out that, under the British Nationality Act 1981, children born in the UK after 1 January 1983 were not automatically entitled to British nationality. Rather, given that both his parents were Ugandan citizens at the time of his birth, and that neither of them were settled in the United Kingdom at that time, and nor had they been granted settlement since, he was the same nationality as his parents, namely a national of Uganda. In response, the Claimant repeated his assertion that he was a British citizen, and further asserted that deportation would breach his human rights and that he had no ties to Uganda. On 7 February 2014 the Claimant was served with a Decision Notice to make a Deportation Order against him under section 32(5) of the UK Borders Act 2007.

On 16 February 2014, the Claimant was detained, under section 36(1) of the UK Borders Act 2007, at the end of his criminal sentence, while the Secretary of State decided whether 32(5) of that Act applied. The Claimant was then aged 24.

On 17 February 2014, the Secretary of State decided that section 32(5) of the 2007 Act applied, rejected the Claimant’s objections, and made a Deportation Order, which was served on the Claimant on 19 February 2014, together with a Notice of Decision giving detailed reasons. The reasons included a presumption (in the Claimant’s favour) that he was born in the Central Middlesex Hospital, but still concluded (for the reasons summarised in the Defendant’s letter dated 29 January 2014 – see para. 22 above) that the Claimant was a Ugandan citizen.

On 25 February 2014 internal guidance was given by the Defendant as to the information to be supplied to foreign countries about persons being sought to be returned on an EUL – namely personal details (including name, nationality, and date of birth); precise place of birth; language and dialect; last address in their country of origin; parents’ full names, date, and places of birth; details of any passport supporting nationality; and copies of any previous passport(s). Arrangements were also required to be made for the individual to be interviewed at the relevant Embassy or High Commission. The guidance was not specific to Uganda, and Ms Buckle was not aware of any difficulties with Ugandan returns at that stage.

The Claimant’s detention should have been reviewed on 17 March 2014 but, because of an error in transferring his file, which was lost for a time, the review was not carried out at that stage. Hence the Defendant’s concession (see para. 2 above) that the Claimant’s detention was unlawful between 17 March 2014 and 10 April 2014. However, as indicated above, it is maintained that, in any event, as the Claimant would have been detained during that period anyway, he is not entitled to substantive damages in relation to that period.

Two other proposed removals to Uganda were the subject of Home Office internal emails on 26 & 27 March 2014. In relation to one of the individuals there had been a meeting at the Ugandan High Commission during which there had been a refusal to issue an Emergency Travel Document (“ETD”) – as it was said that the individual would not classify as a Ugandan national because, on reaching 18, he had been required to apply for Ugandan citizenship, and had not done so. The High Commission had also pointed out that if an individual had been in the UK for a sustained period of time he might lose his right of entry to Uganda, and that the longer a person had been out of Uganda that would work against the issue of an ETD. It was further said by the High Commission that applications would be considered on a case by case basis, but that ETDs would not be issued without the following information:

The case of the second individual involved similar issues – including an assertion by the Ugandan authorities that, under para. 10 of the Ugandan Constitution, he was no longer registered as a citizen of Uganda. It was noted in one of the emails that the second individual appeared to be in danger of becoming stateless.

Ms Buckle accepted that, by April 2014, it was clear that there were significant questions as to whether an individual born in the UK could be a Ugandan citizen. Her Department was guided by Returns Logistics (another of the Defendant’s Departments) who had approached the Ugandan authorities and asked whether a return was possible, and no one had said no. Her Department worked on each specific case – although it was clear that they raised questions in relation to complex issues.

On 2 April 2014 the Claimant sought to appeal, out of time, against deportation. On 4 April 2014 he was given permission to do so.

The first review of the Claimant’s detention was on 10 April 2014 – when the failure to review on 17 March 2014 was noted. It was assessed that there was an increased risk of absconding, and that the risk of reoffending and harm to the public was high, and it was concluded that, had there been a review on 17 March, there would have been a decision to continue to detain. The relevant Senior Executive Officer concluded that:

“Detention is authorised on a clear risk of harm and of absconding, which I believe outweighs the presumption of liberty. I have noted that position of the case and, whilst it is unfortunate that Mr Masozera wasn’t referred to criminal casework earlier, I am content that removal is a realistic prospect within a reasonable period. Before the next review we should establish whether the evidence of nationality we hold is sufficient for removal on an EU letter.”

On 11 April 2014 an authority to detain, which referred to the Claimant as being Ugandan, was issued, and on the same date the Defendant sent a letter to the Claimant giving reasons for his continued detention – namely that it was to effect deportation; the Claimant was otherwise likely to abscond; release carried a high risk of public harm; and there was a risk of further offending. The factors taken into account were also listed and included the Claimant’s previous failure to comply with conditions placed upon him by the police and courts; the fact that he had given an alias to the prison authorities and had stated that he was a British citizen (which had resulted in him not being identified as a foreign national offender for a time); he had shown disrespect for the law as evidenced by his 17 convictions for 31 offences; and he was viewed as posing a serious risk of harm to the public.

On 23 April 2014 the Claimant tried to hang himself.

In a file note dated 24 April 2014 it was recorded that it had been confirmed “with ETD colleagues that FNO can be removed on EU letter when ARE [Appeal Rights Exhausted], as we have a copy of his passport”. It was understood that each case would be decided on its own merits, and that the Ugandans were accepting supplementary evidence.

The second review and authorisation of the Claimant’s detention was completed on 12 May 2014. Reference was made to the Claimant’s criminal record, his abscond risk, a balanced assessment of the risk and gravity of his reoffending, and an expected First-tier Tribunal hearing on 4 September 2014 (a possible error for 24 September 2014 which was repeated thereafter). The Authorising Officer noted:

“Detention is authorised on a clear risk of harm and on absconding, which I believe outweighs the presumption of liberty. I note the position of the case, and conclude that removal within a reasonable time is feasible. Before the next review is due can we establish whether the evidence of nationality that we hold is sufficient for an EU letter?”

The third review and authorisation of the Claimant’s detention was completed on 9 June 2014. Following on from the first review, it was noted that ETD colleagues had confirmed that a Ugandan passport page and bio data were sufficient to remove on an EUL. The reviewing officer’s recommendation, with which the authorising officer agreed, was that:

“Mr Masozera is a foreign national offender who, over a period of three years has been convicted on 14 occasions for 24 offences. His last conviction / sentence was one of eight years’ imprisonment with six months’ concurrent which was in relation to the offences of “Aggravated Burglary”; “Assault with intent to resist arrest” and “Possess controlled drug Class B Cannabis”. It is considered this indicates a high likelihood of reoffending if released. Furthermore, NOMS consider his risk of serious harm level to be high.

Mr Masozera is the subject of a deportation order and has an ongoing appeal against the decision. It is considered that should he exhaust his appeal rights that removal can thereafter be made within a reasonable time, aided by an EU letter.

There are no known family or medical reasons to show that he should not remain in detention.

Whilst the presumption is made in favour of release, it is considered that the risk of reoffending and harm is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention. It is considered that detention should be maintained while the appeal progresses.”

On 10 June 2014 officials of the Defendant requested confirmation from the Ugandan High Commission, which was provided with a copy of the Claimant’s expired Ugandan passport, that the Claimant could be removed on an EUL. The High Commission was not provided with a copy of the Claimant’s UK birth certificate – either then or at any stage prior to the removal.

On 11 June 2014 the High Commission responded, as follows:

“Thanks for contacting the Mission about the removal of Mr Masozera on EU letter. The Mission has no objection to the request however it would be appreciated if we had a look at the physical passport as the details on the biodata page look suspect. This is because it’s an old passport.”

On 11 June 2014 a file note was made on behalf of the Defendant, which recorded that:

“Ugandan HC has agreed for the subject to be removed on EUL. Please ensure the Ugandan EUL removal instructions is (sic) followed prior to removing the subject to Uganda.”

The Claimant’s Ugandan passport was later supplied to the High Commission and was verified (see 8 & 9 December 2014 in paras 56 & 57 below).

The fourth review and authorisation of the Claimants detention was completed on 7 July 2014. The authorising officer commented that:

“Mr Masozera’s appeal is listed on 4 September 2014, and there is documentary evidence available to support an EU letter. Removal therefore remains a realistic prospect within a realistic time frame. Mr Masozera is a prolific offender who has been assessed by his Offender Manager as posing a high risk of serious harm. The risk, along with the risk of reoffending and absconding outweighs the presumption of liberty and detention should be maintained.”

(Note again the apparent error in relation to the date of the First-tier Tribunal hearing, also repeated below).

The fifth review and authorisation of the Claimant’s detention was completed on 4 August 2014. It involved similar considerations to those of the fourth review, save that it was recorded that bail had been refused at hearings on 2 July and 22 July. It was concluded that removal remained a realistic prospect within a reasonable time frame.

The sixth review and authorisation of the Claimant’s detention was completed on 1 September 2014. The Authorising Officer concluded that:

“Removal can be effected on an EU letter once appeal rights are exhausted. The appeal is due to be heard imminently on 4/9/14. I consider that removal within a reasonable time remains feasible. I consider the risk of absconding and re-offending to be sufficient to outweigh the presumption of liberty. I therefore authorise detention for 28 days.”

The Claimant’s appeal against the deportation order was duly heard on 24 September 2014 by First-tier Judge Wiseman. The Claimant appeared in person (although he had previously received legal assistance from counsel, who had submitted a comprehensive skeleton argument in which the Claimant’s Ugandan citizenship was not disputed). Judgment was reserved.

On 25 September 2014 representatives of the Defendant attended a meeting at the Ugandan High Commission and discussed the withdrawal of Ugandan citizenship for those who had been living in the UK since childhood and the use of EULs (which had been used for a number of years) and the process for which had recently changed to allow for pre-verification of nationality before removal – with a verification letter being used as the primary document and attached to the EUL for the removal. The Ambassador requested further change in the process by way of an interview after verification which would allow the Commission to push the individual to return voluntarily and ensure that the photograph on the EUL was of the correct person. A Minute of the meeting recorded that:

“The purpose of the meeting was:

To discuss Ugandan citizenship laws and how they relate to a number of ‘home grown’ criminal casework cases…

The ambassador [sic] commented that for those living overseas, their citizenship lapses at the age of 18 and the individuals have to apply for this to be reinstated. He further stated that people have to be contributing to the life of Uganda by paying taxes etc and that even when a person dies they are not allowed to be buried in Uganda as their citizenship lapses”.

Ms Buckle, who was ultimately aware of the meeting, opined that an Ambassador’s view of the law in their own country will be presumed to be correct. However, see para. 190(3)(b) below as to the law in this regard.

The seventh review and authorisation of the Claimant’s detention was completed on 29 September 2014, when it was noted that the result of his appeal was awaited. The Authorising Officer concluded that:

“I have considered the facts of this case and am satisfied that the risks presented by Mr Masozera are sufficient to outweigh the presumption of release. I note that the appeal was due to be heard on 24 September 2014 and we should obtain an outcome in this as soon as possible. Removal remains a realistic possibility in a reasonable period of time. Detention is therefore authorised for a further 28 days.”

On 6 October 2014 the Defendant issued an Interim Operational Instruction in relation to removals to Uganda on EULs, clarifying the hybrid arrangement that had been agreed with the Ugandan authorities (see para. 45 above). It indicated that EUL removals to Uganda remained sensitive and that they should only be pursued where there was specific supporting evidence of nationality and identity which could accompany the EUL. If there was insufficient or no supporting evidence, an ETD application had to be made to the High Commission. Thus the Instruction drew attention, as Ms Buckle said in her evidence, to issues with EULs, which could still be used if there was supporting evidence. ETDs were also still sought on a case by case basis (provided that there was sufficient documentation).

In a written judgment that was promulgated on 16 October 2014, Judge Wiseman variously recorded or concluded that:

The eighth review and authorisation of the Claimant’s detention was completed on 27 October 2014. It was noted that the Claimant’s appeal had been heard on 24 September 2014 and had been dismissed on 16 October 2014, that a copy of the determination should be obtained, and that it should be established if any further appeal had been raised. The Authorising Officer concluded that:

“Mr Masozera continues to present a risk of offending and a risk of harm. His appeal was dismissed on 16 October 2014, and this is likely to increase his risk of absconding. It is possible that we may now be able to arrange removal within a matter of weeks and I am satisfied that this factor, along with the risks presented by Mr Masozera re sufficient to outweigh the presumption to release. Detention is therefore authorised for a further 28 days.”

The Claimant’s removal to Uganda, with escorts, was authorised on 31 October 2014. A subsequent Deportee Removal Proforma recorded (by reference to adjudications for gang membership, bullying, domestic violence, disobeying orders and fighting) that the Claimant had a history of violence and gang membership, and that he had been disruptive in prison.

An undated Returnee Risk Assessment in relation to the Claimant also recorded aspects of his criminal record and that, whilst in detention, he had adjudications for refusing orders, destroying prison property, and fighting. It was also recorded that he was taking medication for depression and anxiety, and that he had an overbite that made it difficult to eat – for which he was awaiting a dental referral.

The ninth review and authorisation of the Claimant’s detention was completed on 24 November 2014. The Authorising Officer concluded that:

“Removal directions are set for 18 December 2014. Appeal rights are exhausted. There is no barrier to removal. The FNO is a high harm and re-offending [sic] which I am confident is sufficient to outweigh the presumption if liberty. I therefore authorise detention for 28 days.”

At the request of the relevant airline and of the Complex and Scheduled Removal Team, the date of the removal was then brought forward to 9 December 2014.

On 5 December 2014 the Claimant was served with flight papers.

On 8 December 2014 the Claimant’s expired Ugandan passport was taken to the Ugandan High Commission where it was verified. The following day it was collected and taken to Heathrow for collection by the removal team. A Note recorded: “09/12/14 – courier to collect passport from mission and transfer to CSRT Heathrow for removal. Birth certificate too to be courier [sic] to CSRT”.

Also on 8 December 2014, the Claimant served further representations and out of time Grounds of Appeal. Para. 20 of the Grounds pleaded that the Claimant was a Ugandan national who had never visited Uganda, and who had been born in this country and had resided here throughout his life. The Claimant invited the Secretary of State to defer removal, which was refused.

I deal below, under its own heading (starting at para. 125), with the attempted removal to Uganda which began on 9 December 2014 – starting with the collection of the Appellant from HMP Lewes (where he had been placed in segregation), his transport to Heathrow, the flights from London to Nairobi and Nairobi to Entebbe, the events at Entebbe, and the return to Heathrow, via Nairobi and Amsterdam, on 11 December 2014. I set out my findings of fact in relation to those events in para. 145.

In a Minute dated 10 December 2014 it was recorded that:

“Despite the best efforts of TASCOR / FCO Entebbe and NBO and CROS, this sub has been refused entry by the UGA authorities.

When I left yesterday evening the High Commission in London had spoken to the UGA authorities and were supportive of our efforts to try and get Mr M admitted as they had verified his passport as genuine. As I understand it though Immigration were of the view:

a.

It was their decision whether or not to admit him.

b.

They were unsure that the correct process had been followed in London.

c.

Their citizenship laws had changed so that Mr M may have lost his citizenship.

d.

He had been away an awfully long time (they also mentioned at some time that they did not the UK (sic) to use UGA as its dumping ground.

It was not helped that Mr M had a UK birth certificate which he himself presented to immigration there, further muddying the waters. After many hours of deliberation it seems the UGA auth decided late last night to refuse Mr M entry.

He has therefore had to come back and is en route [to Heathrow via Nairobi and Amsterdam]”.

On 11 December 2014 the Claimant was returned to immigration detention at Harmondsworth, where he was screened by a Staff Nurse. It was recorded that the Claimant had indicated that he was “physically fit and well”, and that he did not have “any problem” with his “eyesight /hearing / teeth”. The serious injury box was ticked “no”.

Various other documents were created during and/or shortly after the events of 9-11 December 2014.

In the Person Escort Record, which included a Risk Indicator, in which it was recorded that the Claimant had a history of self-harm; had attempted to hang himself on 23 April 2014; had committed actual bodily harm against a police officer in 2009; was a member of a Trident gang, and had previous firearms offences. It was also recorded that the Claimant had previously said that he wanted to take a member of staff hostage, and that he suffered from mental health issues, namely depression. The Record also included entries to the following effect:

The other documents were all dated 12 December 2014, as follows:

The EUL, which was brought back by the removal team, was routinely destroyed.

The tenth review and authorisation of the Claimant’s detention was completed on 19 December 2014 (i.e. 8 days after his return from Uganda). The risks posed by the Claimant were considered in detail. It was concluded that he posed an “increased” risk of absconding, and a medium to high risk of re-offending, and of thereby causing serious harm. It was further recorded that:

“On 11 December 2014 we were advised that Mr Masozera had been refused entry by the UGA authorities. This was despite the High Commission in London had spoken to the Ugandan authorities and were supportive of our efforts to try and get Mr Masozera admitted as they had verified his passport as genuine. As CSRT understand it though, immigration were of the view:

a.

It was their decision whether or not to admit him.

b.

They were unsure that the correct process had been followed in London.

c.

Their citizenship laws had changed so Mr Masozera may have lost his citizenship.

d.

He had been away for an awfully long time (they also mentioned at some time that they did not the UK [sic] to use UGA as its dumping ground.

These issues have been raised with CROS, asking that they look into the matter and address the issues and offer advice regarding future removal…….

We hold a copy of Mr Masozera’s expired Ugandan passport on file, the original was used in transit during the removal of 9 December 2014 to aid removal on an EU letter. Mr Masozera’s removal directions was attempted on 9 December 2014, only to see his acceptance / admittance refused by Ugandan authorities. The reasons given by the authorities have been raised with CROS and in view of the evidence available and support of the Ugandan High Commission in London, it is still seen that remove can be achieved in a reasonable period.”

That was considered, and detention was authorised, by a Deputy Director, as follows

“Mr Masozera is the subject of a signed deportation order and has exhausted all his appeal rights. An attempt to remove Mr Masozera failed on 9 December 2014 due to acceptance / admittance being refused by the Ugandan authorities. The reasons to refuse entry given by the Ugandan authorities have been escalated to CROS who in turn have raised this with the FCO. The FCO have indicated that they will need to clarify the position before any future removal can be effected and we await further instruction. In the meantime I consider that detention remains appropriate as the risk of harm to the public, along with the risk of re-offending and the risk of absconding currently outweigh the presumption”.

At the request of the Deputy Director, the authorisation was also considered by the Head of Casework South, who observed:

“I agree that detention should be maintained. Removal is a realistic prospect in the near future, and this man poses a very high risk of serious harm to the public”

In a letter (which appears to have been misdated 9 December 2014 and was received by the Defendant on 19 December 2014) the Claimant’s then solicitors variously:

On 30 December 2014 the Claimant’s application for permission to appeal to the Upper Tribunal was refused.

On 9 January 2015 the Returns Directorate Contract Monitor reported that “no contractualfault” had been found in the attempted return.

Also, on 9 January 2015, the Claimant’s complaint was forwarded to the Professional Standards Unit (“PSU”) of the Defendant’s Corporate Security Directorate, and was assigned to an investigating officer, Mr Roberts. The Police were routinely notified. By 14 January 2015 it had been discovered that the CCTV unit in the van used to transport the Claimant from HMP Lewes to Heathrow on 9 December 2014 had stopped recording at 02.00 on 6 December 2014 and had not started to record again until 15.00 on 10 December 2014, and that CCTV footage recorded at Harmondsworth on 11 December 2014 had already been routinely deleted.

The eleventh review and authorisation of the Claimant’s detention was completed on 19 January 2015. It was noted that:

“Removal to Uganda on 9/12/14 was effected but the FNO was returned, despite the passport having been verified, on the premise that citizenship may have been lost. This matter is now with CROS and Director intervention would no doubt assist in forthcoming discussions with the FCO. A formal legal position could be procured from Counsel to assist this. The issue of loss of Ugandan citizenship affects a number of cases currently being processed by Criminal Casework. I nevertheless consider the absconding and re-offending risk to be sufficient to outweigh the presumption of liberty. I propose that authority to detain is given”

The Authorising Officer (Director Grade) noted:

“ Mr Masozera is considered to pose a risk of harm and of absconding. He was removed in December but returned despite having a valid passport which had been verified by the Ugandan authorities due to issues around citizenship. I have raised the wider issue with CROS and with the FCO and await a response on how we will break the current impasse with the Ugandans. Whilst I acknowledge this may cause some delay to removal, detention remains appropriate as we can expect movement on the issue in the near future, therefore I agree to maintain detention on the basis of the risk assessment and the prospect of removal.”

Also on 19 January 2015, the Claimant asked the Defendant why he was still being detained after being denied entry to Uganda – asserting that he had explained on many occasions that he was born in the United Kingdom, and that that fact had been accepted by the Defendant.

The following day, the Defendant replied, noting that the Ugandan High Commission had been supportive of the removal, and concluding that:

“…….Despite the fact that you were born in the UK, it remains considered that you are an Ugandan national. At the time of your birth there is no evidence to show that one of your parents was present and settled (had indefinite leave to remain) in the UK. Furthermore your mother made efforts to register you as an Ugandan national, as evidenced by your now expired Ugandan passport, and thereafter included you in her leave to remain applications.

You remain considered to be an Ugandan national and are subject to a signed Deportation Order. The Home Office continues to address the issues raised by the Ugandan officials in December 2014, with the view of seeking assurances that future removal will be accepted”.

On 22 January 2015 a response was requested from the Defendant’s Country Specialist Team in relation to documentation and removal issues. In reply it was indicated that confirmation had been sought that the Claimant would be permitted to enter Uganda, and that a meeting with the Ugandan High Commission was in the process of being arranged.

On 27 January 2015 the Claimant was interviewed by telephone by Mr Roberts (the investigating officer assigned by the Defendant’s PSU) and stated, among other things, that no one had explained to him why he was put in restraints; that he had started to panic in the van on the way to the flight and (albeit restricted by the restraints) had struggled, that the lead officer [Mr Costin] had then held him in a tightening headlock for about ten seconds, during which his right front tooth had become loose (though he had not appreciated that at the time); that it was only after he had boarded the flight that he had realised that the tooth had become loose and that his mouth was bleeding; that thereafter he had asked to go to the toilet, where the tooth had fallen out; that he had not told anyone at the time because he was scared of the consequences; that when he was refused entry the lead officer had become aggressive in his demeanour and tone; that during a significant period at Entebbe he had not been given food, only water, until he had joined the other officers in the lounge; and that, on arrival at Harmondsworth, he had not told anyone (including the nurse) about the assault or his tooth – as he had felt that the only person he could trust was his solicitor.

A bail application by the Claimant, which was due to be heard on 28 January 2015, was withdrawn.

Five of the officers from the removal team were interviewed by the PSU. Mr Duncan by telephone on 5 February 2015; Mr Costin by telephone on 9 February 2015; and Mr Edwards by telephone on 11 February 2015. On 12 February 2015, Mr Stroud and Mr Lidstone each provided a written response to a questionnaire. All denied the Claimant’s allegations. Mr Costin accepted that, on his account, there had been a failure to record all the instances when the Claimant had been offered or given food.

The twelfth review and authorisation of the Claimant’s detention was completed on 16 February 2015. It was variously recorded in the review that:

“Outstanding barrier to deportation: Clearance for return.

Expected date of resolution:

Awaiting CROS to agree a meeting with the Ugandan High Commission to discuss the EUL process. Country Specialist team advise that this is likely to be agreed imminently……..

The issues in relation to the failed removal of 9 December 2014 have been chased with CROS and Country Specialist colleagues…..They have been advised for future removals that we (the Home Office) must ensure we have confirmation in writing from the Ugandan authorities (via the UHC in London) that they have agreed to the removal to take place, and that Ugandan immigration confirm that the subject will be allowed to enter Uganda. CROS are in the process of attempting to arrange a meeting with the UHC to discuss the EUL process. Updates continue to be requested and Country Specialist colleagues advised on 10 February 2015 that they believed that a date for meeting would be set imminently……..

We hold a copy of Mr Masozera’s expired Ugandan passport on file, the original was used in transit during the removal of 9 December 2014 to aid removal on an EU letter. Mr Masozera’s acceptance / admission was refused by Ugandan authorities. The reasons given by the authorities have been raised with CROS and in view of the evidence available and support of the Ugandan High Commission, it is still seen that remove can be achieved in a reasonable period”.

The Authorising Officer, Ms Buckle, noted that:

“Negotiations are ongoing with the Ugandan authorities, and we are hopeful of progress shortly. We are content that the documentation that we hold is genuine, and that removal can be effected swiftly. Detention is authorised for a further 28 days based upon a risk of harm, reoffending and absconding which I consider sufficient to outweigh the presumption of liberty”

On 17 February 2015 a file note recorded that the only barrier to removal was the Claimant’s documentation.

A GCID record dated 3 March 2015 noted that CROS had confirmed that EUL / ETD removals for Uganda were on pause – but that removal talks were taking place that week, and that CROS had agreed to enquire about this case in particular.

Shortly thereafter, the Defendant issued an Interim Operational Instruction in relation to removals to Uganda. It indicated that, following concerns raised by the Ugandan immigration authorities about returns to Uganda on EULs, coupled with a spate of bounce backs, an agreement had been reached to suspend removals to Uganda using EULs, and to implement an ETD process the minimum requirements for which were – a submission letter; an ETD application form; a Consular Registration form; supporting evidence to include a passport, or birth certificate, or identity card; bio date; and passport photographs cut to size. In each case a face to face interview at the High Commission would also be required.

On 9 March 2015, in an internal Home Office email, CROS advised that the Ugandan High Commission: “are no longer accepting EULs. Therefore please complete and submit a travel document application……Allowing at least 5 clear working days after submission, please complete & submit an Interview Request Proforma to CROS Africa 1 to arrange a face to face interview”.

On 11 March 2015 the thirteenth review and authorisation of the Claimant’s detention was commenced. The Reviewing Officer variously noted that:

“Awaiting CROS to agree a meeting with the Uganda High Commission to discuss the EUL process.

CROS advise that this is at present EUL / ETD for UGA are on pause.

Removal talks are taking place this week…….

We hold a copy of Mr Masozera’s expired Ugandan passport on file, the original was used in transit during the removal of 9 December 2014 to aid removal on an EU letter. Mr Masozera’s acceptance / admittance was refused by Ugandan authorities. The reasons given by the authorities have been raised by CROS and in view of the evidence available and support of the Ugandan High Commission in London, it is still seen that removal can be achieved in a reasonable period once we submit an ETD application……….

Mr Masozera was convicted of aggravated burglary, assault with intent to resist arrest and possession of Class B drugs. He received sentences of eight years’ imprisonment with six months’ concurrent. Following his conviction he was assessed as a MAPPA level 2 offender. As such he poses a high risk of serious harm to the public. The only barrier to removal is an ETD. On 09 March 2015 CROS has advised that UGA HC are no longer accepting EU letters. An ETD pack will now be submitted. The case owner has assessed his risk of absconding as medium. There are no compelling reasons to believe that he would remain in contact with the Home Office so we can effect his removal. Bearing these facts in mind, I have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance. In this case the presumption is on balance outweighed by the risk of harm to the public should he re-offend, the likelihood of re-offending, and the significant risk of absconding. I concur with the proposal that detention remains proportionate at this time.”

On 16 March 2015 the Acting Assistant Director, who authorised detention that day, recorded that:

“I agree that further detention remains reasonable, given the serious nature of his offences when balanced against the fact that removal may be some way off. There is ongoing activity around engagement with the Ugandan authorities and thus we are progressing to removal.”

Also in March 2015, at the conclusion of its investigation, the Professional Standards Unit reported on, and rejected , the complaints made by the Claimant in December 2014.

The fourteenth review and authorisation of the Claimant’s detention was completed on 13 April 2015. It was recorded that:

“Mr Johnson has been in detention for some 14 months. The authorising officer gave serious and careful attention to Mr Johnson’s detention”.

“On 09 March 2015 CROS advised that the Ugandan authorities refused to accept Mr Masozera on EU Letter. Therefore we have been advised by CROS to submit a fresh ETD application via the Ugandan High Commission in London ………in view of the evidence available and support of the Ugandan High Commission in London, it is still seen that remove can be achieved in a reasonable period once we submit an ETD application………….The only barrier to removal is a travel document, the caseowner is working with CROS to take this forward and on their advice will now be submitting an ETD…..I have considered the presumption of liberty…….In this case the presumption is on balance outweighed by the risk to the public should he re-offend, the likelihood of re-offending and the significant risk of absconding. I concur with the proposal that detention remains proportionate at this time.”

Next action

Can we have a view from CROS on the likely timescale for the suspension of relations.

The Claimant’s ETD application form was completed the following day (14 April 2015). On 17 April 2015 it was submitted to the Ugandan High Commission, and thereafter steps were taken to arrange a face to face interview of the Claimant at the High Commission, which took place on 29 April 2015. No one from the Defendant was present at the interview.

A bail application by the Claimant, which was due to be heard on 30 April 2015, was withdrawn. The Defendant’s records show that on 7 May 2015 internal efforts were made to discover the outcome of the Claimant’s ETD application, and that advice was given that the Defendant had to wait for a month before contacting the High Commission.

The fifteenth review and authorisation of the Claimant’s detention was completed on 11 May 2015. It was observed that all the actions suggested on 13 April 2015 (above) had been carried out, in that on 17 April an ETD application had been submitted to the Uganda High Commission; a face to face interview request pro-forma had been completed and emailed to RL Country Liaison and document Team 1; an email had been sent to DEPMU to arrange for the claimant’s movement order to attend a Face to Face interview; on 27 April a bail application had been completed; and that there had been a Face to Face meeting on 29 April, the outcome of which was awaited The Authorising Officer noted that:

“I agree with the proposal to maintain detention for a further 28 days. Mr Masozera has been convicted for a very serious crime and his sentence reflects this. He was removed on 9 December 2014, but returned as he was refused entry by the Ugandan authorities. An ETD application was submitted and a F2F took place on 29 April 2015. RL advised that this can be chased one month after F2F”.

On 29 May 2015 (i.e. a month after the Claimant’s face to face meeting at the High Commission) the Claimant’s solicitors wrote to the Defendant, stating that the Ugandan officials had told the Claimant that he would not be issued with an ETD, and asserting that they considered that the Claimant’s detention had become unlawful.

On 3 June 2015 ((i.e. nearly 5 weeks after the Claimant’s face to face interview) the Defendant chased the Ugandan High Commission (by phone and email) as to the outcome of his ETD application.

The sixteenth and final review and authorisation of the Claimants detention was completed on 8 June 2015. The reviewer noted that:

“Following a meeting with CROS and the Uganda High Commission on [sic] March 2015, CROS confirmed that the EU letter process has been suspended. Therefore as advised by Country Speciality Team an ETD application has been submitted on 17 April 2015. At present no timescales given when ETD will be issued…….

Actions taken to progress the case since preceding review /progress against action plan from previous review.

On 29 April 2015 Mr Masozera’s Face to Face interview with Ugandan High Commission completed and RL Country Liaison Team advised that we have to allow at least 1 month after interview has been conducted before reviewing with the High Commission.

Contacted RL Country Liaison Team for the outcome of the face to face interview.

They have not been able to contact the official at the Ugandan High Commission by phone on 3 June 2015, so they have sent an email requesting the outcome of the interview.”

The Acting Assistant Director, who authorised detention, commented:

“A very serious harm risk and, I note, an equally serious abscond risk. Further detention is authorised as the risks outweigh the presumption to release and we have a reasonable prospect for removal at this point”.

On or around 15 June 2015 (i.e. nearly 7 weeks after the Claimant’s face to face interview) the Ugandan High Commission was again chased by the Defendant as to the outcome of the ETD application.

On 18 June 2015 an application by the Claimant for immigration bail was granted - subject to residence, tagging and reporting conditions.

A week later, on 25 June 2015, Casework officials were advised by the Country Liaison and Documentation Team 1 that the Ugandan authorities would not accept the Claimant into Uganda and that their position had not changed from that when the Claimant had been refused entry into Uganda in December 2014.

In mid-July 2015 a Home Office email noted difficulty in returning people to Uganda, as follows:

“Now the embassy is refusing to issue, and RL are stating ‘the Ugandan High Commission will not accept anyone back in to Uganda if they were born in the UK or have had a long period of residence in the UK. They are having trouble returning people to Uganda even when they have arrived in the UK aged 10 or 11, this is due to the length of time they have spent in the UK. Uganda’s stance after a long period if time out of their country their subjects lose their Nationality and are no longer classed as Ugandan nationals and cannot be returned under any circumstances…. Is there any way of escalating this to ministerial level….”

In a follow-up email it was recorded that there had been a meeting with Ugandan officials the previous month (i.e. in June 2015), to agree a way forward “on cases where length of time spent in the UK and criminality are proving a barrier to documentation, and to discuss a number of unresolved high profile CC cases. The issues surrounding nationality were discussed and it seems clear that the Ugandan officials retained strong views on the subject…….The officials stated that they would not be accepting the return of any convicted national……..There will be no quick fixes on these types of cases as the Ugandans will not change their current positions.”

On 20 July 2015 the Defendant obtained confirmation that the Claimant’s UK birth certificate was genuine, and that he had been born at Central Middlesex Hospital on 24 December 1989.

On 24 September 2015 the Ugandan High Commission confirmed that they would not accept a person who was “either born in the UK or had a long period of absence from Uganda, as they were considered to have lost the Nationality and were no longer classed as Ugandan nationals”.

On 26 October 2015 the Claimant was arrested on suspicion of possessing cannabis / cannabis resin with intent to supply. He was recalled to prison on 3 December 2015.

On 24 December 2015 the Claimant wrote a letter requesting that his Deportation Order be revoked and that he be released from detention – stating that he was not Ugandan and that that was what the Ugandan High Commission had told him when he had attended his face to face interview.

On 28 January 2016 a Pre-Action letter was sent on the Claimant’s behalf. On 7 February 2016 the Defendant refused the Claimant’s further submission of 24 December 2015 as being a fresh claim.

On 10 February 2016, in an internal Home Office email, it was observed that: “Uganda’s stance is after a long period out of their country, their subjects lose their Nationality and are no longer classed as Ugandan nationals and cannot be returned under any circumstances. Can you please contact RL for an update on this situation, if it remains the same we will need to discuss whether we should concede deportation…..This may end up being similar to Nancy’s case where he was effectively stateless”. On 12 February 2016 another internal Home Office email noted that: “….on the basis of the constitution they appear to have no basis in Ugandan law to refuse to accept this subject as a UGD national…”

On 17 February 2016 the Defendant responded to the Claimants submissions of 24 December 2015. The Claimant’s human rights claim was considered in detail and rejected.

In relation to the Claimant’s assertion that he was not Ugandan, it was pointed out, amongst other things, that:

As to the Claimant’s assertion that deportation was no longer an option, it was pointed out that there had only been one attempt to remove him – which had taken place on 9 December 2014, following agreement from the Ugandan High Commission. The response continued: “The Home Office continues to seek resolution with the Ugandan High Commission so that your deportation from the UK can be progressed”

On 25 February 2016 the Defendant responded to the Claimants Pre-Action letter of 28 January 2016 – again setting out, in particular, why the Claimant was considered to be a Ugandan national and that resolution continued to be sought.

On 9 June 2016 the Claimant applied for leave to remain as a stateless person. The application was refused by the Defendant on 23 September 2016 – pointing out that the Claimant was the subject of the deportation order signed on 17 January 2014 and asserting that he had therefore failed to satisfy paragraph 404(c) of the Immigration Rules.

An email dated 7 July 2016 indicated that, earlier in the year, attempts had been made to meet with the Ugandan High Commission to discuss the Claimant’s case.

On 6 April 2017 the Claimant applied for his Deportation Order to be revoked. The application was refused on 22 September 2017 – with the Secretary of State repeating her conclusion that, as the Claimant did not appear to fall within any of the relevant exceptions in the Ugandan Constitution, he was a Ugandan national by birth.

On 7 July 2017, in the Crown Court at Lewes, the Claimant was convicted of possessing cannabis / cannabis resin with intent to supply, and was sentenced to 4 years’ imprisonment.

In April 2018 the Defendant received an undated letter from the Claimant, in which he requested revocation of his Deportation Order upon the basis that a travel document had not been issued and there had been several material changes in his life – including that his mother had passed away. The request was refused on 14 September 2018. The refusal highlighted, amongst other things, that:

In a Pre-Action Protocol letter dated 20 September 2018, the Claimant, acting in person, asserted that: “The Secretary of State has failed to recognise that I am a European citizen by birth”. The Defendant’s Response dated 2 October 2018 variously:

On 10 December 2018 the Claimant issued proceedings seeking judicial review of his; “forced unlawful removal…..on 9 December2014 and unlawful detention from 14^th June 2014 until 19^th June 2015”. However, he failed to file a certificate of service.

On 11 February 2019 the Claimant made a Nationality Status application. On 16 May 2019 the Claimant made representations that he was stateless.

On 25 June 2019 the Secretary of State determined that the Claimant had no right to British citizenship. Three days later the Secretary of State confirmed that the Claimant’s representations that he was stateless were to be transferred to the relevant department. In the result, on 2 July 2019 the Secretary of State decided to reconsider the Claimant’s Stateless Leave Consideration application.

On 19 September 2019, the Secretary of State refused to revoke the Deportation Order, and rejected the Claimant’s Article 8 claims.

The Claimant’s Stateless Leave Consideration application was considered in a Minute dated 20 November 2019. Aspects of the history (including the conviction and sentence in 2010) were set out, and it was concluded, among other things, that:

“The applicant has made all possible attempts to verify his nationality and has complied with the Home Office in attending interviews with the Ugandan HC, he has also provided evidence where possible to verify his nationality and birth place. Based on the above Information it is accepted the applicant is stateless as it is clear that he will not be accepted by the Ugandan authorities as a Ugandan national. The applicant has met requirements of paragraph 403………..However, it is considered that the application falls for refusal under Paragraph 404(c)………It is considered that the applicant’s conduct and character make it undesirable to allow him to remain in the UK taking into account the offence referred to above and the sentence received. The Secretary of State is not prepared to exercise discretion in his favour. The application is therefore refused under Paragraph 404(c) with reference to paragraph 322(5) of the Immigration Rules………A letter will be issued to the applicant explaining that he has been accepted as stateless under paragraph 403, but has been refused under paragraph 322(5) in line with paragraph 404(c)”.

On 26 November 2019 there was an internal request for consideration of the revocation of the Claimant’s Deportation Order. It was noted that the Ugandan High Commission had confirmed in September 2015 that they would not accept a person who was “either born in the UK or had a long period of absence from Uganda, as they were considered to have lost the Nationality and were no longer classed as Ugandan nationals”. In the result, a pragmatic decision was made by the Acting Director not to proceed with the Claimant’s return.

On 12 December 2019 the Claimant’s Deportation Order was revoked on the basis that he was accepted as being a stateless individual under Immigration Rule 403. Given his criminal record, he was granted 30 months’ discretionary leave outside the Rules.

Legal framework

Section 1 of the Protection from Harassment Act 1997 provides that:

“1 Prohibition of harassment.

(1)

a person must not pursue a course of conduct –

(a)

which amounts to harassment of another, and

(b)

which he knows or ought to know amounts to harassment of another.

Section 3 of the Act provides that:

“(1)

An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2)

On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

……….”

Section 7 of the Act provides that:

“……….

(2)

References to harassing a person include alarming the person, or causing the person distress.

(3)

A “course of conduct” must involve –

(a)

in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person……

(4)

“Conduct” includes speech ”.

An employer can be held vicariously liable for conduct of its employees in breach of the Act – see Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34; [2007] 1 AC 224. Equally, conduct will sustain action under the Act where it is carried out by either one employee or “by more than one employee each acting on different occasions in furtherance of some joint design” – see Daniels v Commissioner of Police of the Metropolis [2006] EWHC 1622 at para. 9.

Whilst, section 7(2) apart, there is no definition of harassment the Act, in Majrowski (above) Lord Nicholls said, at para. 30:

“Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.”

However, as the Defendant recognises, those observations are not a substitute for the requirement to primarily focus on whether the conduct is “oppressive and unacceptable” – see Veakins v Kier Westminster Ltd [2009] EWCA Civ 1288; [2010] IRLR 132, at paras. 11-12. Equally, context is important when assessing the gravity of an act – see Conn v Sunderland City Council [2007] EWCA Civ 1492 at para.12.

In Jones v Ruth [2011] EWCA Civ 804 at para 24 Patten LJ said:

“…..Harassment means the persistent tormenting or irritation of the victim. It is therefore deliberate conduct which its perpetrator either knows, or certainly ought reasonably to be aware, has this effect on the Complainant. It will therefore usually consist of conduct of a kind which Lord Nicholls has described as intensely personal in character between two individuals: see: Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34 at para 25…..This may range from actual physical force, or the threat of force, to much more subtle but nonetheless intimidating conduct. In each case the Defendant will be (or should be) aware of the effect which his conduct is having on the Claimant.”

As to the operation of the statutory defences, there is no guidance in the Act as to what constitutes reasonable conduct. In Hayes v Willoughby [2013] UKSC 17, at para.15, Lord Sumption, giving the judgment of the majority, said:

“Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it. If he has done these things then he has the relevant purpose. The Court will not test his conclusions by reference to the view which a hypothetical reasonable man in his position would have formed. If, on the other hand, he has not engaged in these minimum mental processes necessary to acquire the relevant state of mind, but proceeds any way on the footing that he is acting to prevent or detect crime, then he acts irrationally”.

The elements of the cause of action were summarised by Simon J (as he then was) in Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) at para.142, as follows:

“(1)

There must be conduct which occurs on at least two occasions,

(2)

which is targeted at the Claimant,

The Claimant’s case

The Particulars of Harassment are set out in para. 18 of the Amended Particulars of Claim, as follows:

“Over the two-day period from 9 December 2014 up to and including 11 December 2014, the Defendant engaged in a course of conduct comprising actions which it knew, or ought to have known, would cause the Claimant alarm and/or distress and which, objectively considered, was both oppressive and unacceptable. In particular, the Claimant claims that:

a.

In the process Defendant caused the Claimant roughly to be removed by approximately 6 Males from his place of detention in HMP Lewes. The Claimant was instructed by one or more of those detaining him that force would be used if he did not comply with their directions. Notwithstanding the Claimant’s assurances that he would remain compliant, he was placed in s strait jacket/body restraint and ‘frogmarched’ out of HMP Lewes in a degrading manner.

b.

During the course of his journey to Heathrow Airport, the Claimant was prevented from properly informing his family and/or solicitors of his impending removal. A phone was placed against his ear, again in a degrading manner, and this was the only opportunity he was given to speak with his mother, who upon hearing of the Claimant’s situation immediately had a seizure.

c.

Upon arrival the vehicle in which the Claimant was being escorted arriving at Heathrow [sic] and drawing alongside the plane upon which he was to be removed, and upon the Claimant remonstrating with those detaining him that he could not travel to Uganda, one of those detaining him grabbed the Claimant in a violent headlock, whilst also pushing the Claimant’s head forward, and shouted at him “you will do this the easy way or the fucking hard way.”

d.

During the course of the flight to Uganda, the Claimant was only allowed out of the body restraints when he needed to go to the toilet. Upon return from the toilet he was once more placed in the body restraints, and this happened in full view of all the other passengers causing him distress and shame.

e.

Upon the Claimant’s arrival at Entebbe airport, the Claimant was instructed by the detaining agent, who had earlier placed him in a headlock, that he must not tell the Ugandan authorities that he had just come from prison; and he should inform them that he was a returning resident.

f.

The same agent untruthfully informed the Ugandan authorities at the Ugandan Immigration Control that the Claimant was a returning Ugandan resident, and that he was born in Uganda.”

The evidence

As indicated above, the Claimant gave evidence, and called his sister Talatu Masozera. The Defendant called Gary Costin (the Senior Detainee Custody Officer who was in charge of the removal team which collected the Claimant from HMP Lewes in the afternoon of 9 December 2014, took him to Heathrow, flew with him to Nairobi and then on to Entebbe, and thereafter, following the refusal of admission to Uganda, returned to this country with him, flying via Nairobi and Amsterdam and arriving back on 11 December 2014); Daniel Stroud (a member of the team); Derek Duncan (also a member of the team); Andrew Lidstone (another member of the team); Duncan Pearce (the paramedic who accompanied the team throughout); and Darren Edwards (who drove the Claimant and the team in a van from HMP Lewes to Heathrow). I also had copies of the various broadly contemporaneous documents referred to in paras. 60-62 above.

Submissions

As already touched on above, in the course of his oral closing submissions on behalf of the Claimant, Dr Wilcox recognised that the claim of harassment was essentially a question of fact for me to resolve, and indicated that the Claimant understood that he had a large factual hurdle to overcome – given that six witnesses had offered a different account to his own. Nevertheless, Dr Wilcox submitted, if para. 18 of the Amended Particulars of Claim was made out to the requisite standard, harassment would be proved.

In his written closing submissions, Dr Wilcox submitted that the position was simple. Over the two-day period from 9 – 11 December 2014 the Defendant had engaged in a course of conduct comprising actions (as alleged in para. 18 of the Amended Statement of Claim) which it knew, or ought to have known, would cause the Claimant alarm and/or distress and which, objectively considered, was both oppressive and unacceptable. Whilst the factual allegations were for the court to determine, the Defendant had submitted that, even if found proved, they were incapable of making out a finding of harassment in law – in particular that the allegations were incapable of disclosing conduct that was “oppressive and unacceptable”, or calculated in an objective sense to cause alarm and distress, since the actions were carried out in the context of a lawful removal. That, Dr Wilcox submitted, missed the point that the facts alleged were capable of disclosing bad faith on the part of the escorting officers as, on any view, they lacked belief in their lawful authority to effect the Claimant’s removal in the manner attempted, and he was subjected to multiple acts which were clearly calculated to cause alarm and distress in the relevant sense.

In the combination of his oral and written submissions, Mr Deakin, on behalf of the Defendant, argued that the harassment claim could not be made out - either in principle or on the facts of the case.

As to principle, Mr Deakin argued that:

As to the facts in relation to the use of restraints, Mr Deakin variously argued that their use was neither calculated (in an objective sense) to cause the Claimant alarm and distress, nor could it be properly judged to have been oppressive and unacceptable, against the background that:

In relation to the alleged assault in the van, Mr Deakin variously argued that:

Evaluation of the evidence

Despite making every allowance for the passage of time, the stress of giving evidence and his background mental health issues, I have grave reservations about the credibility of the Claimant’s evidence in relation to the matters in dispute, against the background, amongst other things, that:

I found all the members of the removal team to be credible witnesses. Mr Costin, in particular, was an impressive witness – albeit that there was a failure to record (in the Person Escort Record) all the instances at Entebbe when the Claimant had been offered or given food.

As indicated above, the Claimant’s sister Talatu Masozera also gave evidence, in particular as to what she heard of a phone call made by the Claimant to their mother on 9 December 2014, during which he was gasping and not able to get his words out. However, I preferred the evidence of the Defendant’s witnesses, who were with the Claimant at the time, and recalled that he was very upset, rather than hyperventilating.

Facts found

On the balance of probabilities, I find the following additional facts in relation to the harassment claim:

Harassment – Conclusion

Against the background of the facts that I have found, the Claimant has failed, by a very substantial margin, to prove that he was the subject of a course of conduct which amounted to harassment. Accordingly, his claim of harassment is dismissed.

Legal framework

As Dr Wilcox, on behalf of the Claimant, submitted there are, in essence, two elements to the tort of false imprisonment, which is actionable per se, namely:

Dr Wilcox further submitted that an error of public law which bears upon, and is relevant to a decision to detain will, in most cases, render immigration detention unlawful as a matter of public law and give rise to the tort of false imprisonment in private law – see R (Lumba & Mighty) v SSHD [2012] 1 AC 245 (per Lord Dyson at para. 80) and Kambadzi v SSHD [2011] UKSC 23, provided that the error is material to the detention (per Lord Kerr at para. 80).

The provision relied upon in this case for the making of the Deportation Order was section 32 of the UK Borders Act 2007, which provided, in so far as material, that:

“Automatic deportation

(1)

In this section “foreign criminal” means a person –

(a)

who is not a British citizen,

(b)

who is convicted in the United Kingdom of an offence, and

(c)

to whom Condition 1 or 2 applies

(2)

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

………….

(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971 (c.77) the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section33).

(6)

The Secretary of State must not revoke a deportation order made in accordance with subsection (5) unless –

(a)

he thinks that an exception under section 33 applies,

(b)

The application for revocation is made whilst the foreign criminal is outside the United Kingdom; or

(c)

section 34(4) applies.”

(It should also be noted that, as in force at the time, section 36(2) of the 2007 Act provided that when an order was made under section 32(5) the Secretary of State was required to exercise the power of detention under Schedule 3 to the Immigration Act 1971, unless they thought it inappropriate to do so).

Section 33 of the Act provided, in so far as material, that:

“ Exceptions

(1)

Section 32(4) and (5) –

(a)

do not apply where an exception in this section applies (subject to subsection 7 below), and

(b)

are subject to sections 7 & 8 of the Immigration At 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

(2)

Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach –

(a)

a person’s Convention rights, or

(b)

The United Kingdom’s obligations under the Refugee Convention.

….

(7)

The application of an exception –

(a)

does not prevent the making of a deportation order;

(b)

results in it being assumed neither that deportation of the person is conducive to the public good, nor that it is not conducive to the public good;

but section 32(4) applies despite the application of exception 1……”.

Section 34 (4) provided that:

“The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of –

(a)

taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971…., and

(b)

subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5)”.

Section 3(5) of the Immigration Act 1971 provided that:

“A person who is not a British Citizen is liable to deportation from the United Kingdom if –

(a)

The Secretary of State deems his deportation to be conducive to the public good; ……..”

Section 5 of the Immigration Act 1971 provided for the actual making of a deportation order, as follows:

“(1)

Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

(2)

A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British Citizen”.

My attention was also drawn to various aspects of the then Immigration Rules, including:

“362.

A deportation order requires the subject to leave the United Kingdom and authorises his detention until he is removed. It also prohibits him from re-entering the country for as long as it is in force and invalidates any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force……

396.

Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397.

A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

401.

For the purposes of this Part a stateless person is a person who:

(a)

satisfies the requirements of Article 1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons, as a person who is not considered as a national by any State under the operation of its law;

(b)

is in the United Kingdom; and

(c)

is not excluded from recognition as a Stateless person under paragraph 402.

403.

The requirements for leave to remain in the United Kingdom as a stateless person are that the applicant;

(a)

has made a valid application to the Secretary of State for limited leave to remain as a stateless person;

(b)

is recognised as a stateless person by the Secretary of State in accordance with paragraph 401;

(c)

is not admissible to their country of former habitual residence or any other country; and

(d)

has obtained and submitted all reasonably available evidence to enable the Secretary of State to determine whether they are stateless.

404.

An applicant will be refused leave to remain in the United Kingdom as a stateless person if;

…………..

(c)

their application would fall to be refused under any of the Grounds set out in paragraph 322 of these rules.” [which included having been sentenced to imprisonment for a least four years].

Submissions

The relevant effect of the automatic deportation regime, Dr Wilcox submitted, is that:

Dr Wilcox relied on the decision of the Supreme Court in DN (Rwanda) v SSHD (above) in which it was held that the lawfulness of detention is always referable back to the decision to deport, and that where a decision to deport is unlawful, the detention to which it gives rise is also necessarily rendered unlawful. At paras 17 & 18 Lord Kerr, giving the judgment of the majority, said:

“Here, as in Lumba, there was no lawful statutory power to detain. The statutory power to which recourse had been had in deciding to make the deportation order, and in making it, was invalid. Detention in this case was for the express purpose of facilitating the deportation. Without the existence of a deportation order, the occasion for (much less the validity of) detention would simply not arise. To divorce the detention from the deportation would be, in my view, artificial and unwarranted.

The making of a deportation order is, as Sullivan LJ said, a two-stage process, involving (a) notice of a decision to deport and (b) the making of a deportation order. Detention at both of these stages is entirely dependent on the decision to deport. Without that decision the question of detention could not arise, much less be legal. The detention was, therefore, inevitably, “tainted” (to borrow the expression from para. 88 of Lord Dyson’s judgment) by public law error…..”

Against that background, Dr Wilcox submitted that:

As to the merits under this heading, Dr Wilcox’s primary submission was that:

Dr Wilcox’s alternative submission under this heading was that:

In the combination of his oral and written submissions Mr Deakin, on behalf of the Defendant, submitted that the Claimant’s argument in support of his claim that the deportation order was unlawful from the outset appeared to run along the lines that:

Mr Deakin submitted that such an argument could not be sustained on the facts, or as a matter of principle . Further, and to the extent that it was necessary to address the point at all, Mr Deakin submitted that the Claimant was estopped from raising the lawfulness of his deportation in this claim for damages.

As to the merits, Mr Deakin submitted that:

In relation to res judicata / issue estoppel, Dr Wilcox responded that, whilst the Defendant cited the conditional observations of Lord Carnwath in DN(Rwanda)v SSHD (above), the following points were made on behalf of the Claimant:

The Lawfulness of the Deportation Order - Conclusions

My conclusions are as follows:

Legal Framework

It is convenient to set out the Hardial Singh principles in full at this stage. The authoritative formulation of them is to be found in Lumba [2011] UKSC 12, as follows:

“(i)

the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)

the deportee may only be detained for a period that is reasonable in all the circumstances:

(iii)

if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv)

the Secretary of State should act with reasonable diligence and expedition to effect removal.”

Ultimately, the Court must decide for itself whether the principles have been complied with, rather than reviewing the decision of the Secretary of State, and there are no guidelines as such – see e.g. R (A) v SSHD [2007] EWCA Civ 804 and Fardous v SSHD [2015] EWCA Civ 931.

Principle 1 prevents the Home Office from detaining individuals for purposes that are irrelevant to immigration, like national security and detention must be for the purposes of deportation – see e.g. HXA v The Home Office [2010] EWHC 1177 (QB).

Dr Wilcox submitted that, in the context of this case, there must be not simply an intention to remove pursuant to a deportation order, but to do so in a lawful manner – as the definition of deportation implies that it is a species of lawful removal.

As to principles 2 & 3, in R(MH) v SSHD [2010] EWCA Civ 1112 the Court elaborated on the test, saying that there must be a “sufficient” prospect of removal within a reasonable period of time, with a higher level of certainty about removal required as the length of detention increases. Equally, the reasonable period is defined “in all the circumstances” and must be viewed prospectively – see R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin).

In R (I) v SSHD [2002] EWCA Civ 888, at para.46, and in Lumba (above), at paras. 104 – 128, Lord Dyson considered the main factors in relation to the assessment of the reasonable period, namely the length of the period of detention; the nature of the obstacles preventing deportation; the risk of absconding; the risk of offending (important in cases where there is a pattern of serious criminal offences in the past); the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions of detention; and the effect of the detention on the detainee and his family.

Dr Wilcox underlined that, in accordance with para. 26 of the judgment of Lord Dyson in Lumba (above) and the decision of the Court of Appeal in R (WL (Congo)) & (KM (Jamaica)) v SSHD [2010] EWCA Civ 111, a decision-maker must follow published policy unless there are good reasons for not doing so, and that policy must be consistently applied.

Submissions

As to the merits of this Ground, Dr Wilcox submitted that the Defendant did not detain the Claimant, throughout the entire period of his detention, for the purpose of deportation - since (being a species of lawful removal) the intention to deport implied the intention to effect removal in a lawful manner and, in so far as there was an intention to remove the Claimant in a manner that was not lawful, there was no longer an intention to deport, but rather simply an intention to remove. That carried with it the inevitable implication that the Claimant’s detention also ceased to be for the purposes of deportation as required by Hardial Singh 1.

Dr Wilcox further submitted that it was the Defendant’s stated aim, from very early on in the Claimant’s detention, if not from the start, to affect the Claimant’s removal by EU letter. However, removal on such a letter was unlawful in that:

Mr Deakin accepted that, under Hardial Singh 1, “The Secretary of State must intend to deport the person and can only use the power to detain for that purpose”. He submitted that the Claimant’s principal argument is unsustainable both in principle, and on the facts, given that:

Hardial Singh 1 - Conclusions

This can be dealt with shortly:

Legal Framework

I have set out the basic principles in para. 165 above. They are accepted by the Defendant.

Submissions

As indicated above, overall Dr Wilcox submitted that, upon detention, and throughout the entire period of his detention, there was no reasonable prospect of the Claimant’s removal, such that, by virtue of that fact, his detention was rendered unlawful, since the Defendant knew, or ought to have known, that the Ugandan authorities were simply refusing to accept individuals with the Claimant’s profile as returning nationals.

As to the evidence up to the attempted removal, having reminded me of the background (as broadly summarised above), Dr Wilcox submitted, in the combination of his oral and written submissions, that:

As to events after the failed removal, and up until the Claimant’s release on 18 June 2015, Dr Wilcox submitted that it should have been clear to the Defendant that the Claimant was not removeable and that therefore his removal was incapable of being in reasonable prospect such as to justify detention – the accumulating evidence for which included:

Dr Wilcox also underlined aspects of the events after the Claimant’s release (see paras. 99 – 124 above), which culminated on 12 December 2019 with the revocation of the deportation order under section 34(4) of the 2007 Act (which was said to clearly indicate that the Secretary of State was no longer of the view that the Claimant fell within the ambit of section 32(5) of that Act) and granting the Claimant leave outside the Immigration Rules.

Mr Deakin relied on aspects of the following authorities:

Mr Deakin also underlined that the documentation before the Court evidenced that:

Further, Mr Deakin emphasised that the Claimant’s appeal against the deportation order was dismissed in trenchant terms by First-tier Judge Wiseman and thus, when considering whether it was reasonable to maintain detention whilst the Claimant had an outstanding appeal, the length of time required to complete the appeal should be given little weight.

In the result, Mr Deakin submitted that the Claimant did not, and could not, challenge any of those assessments such that, without more, his detention would plainly be lawful in accordance with Hardial Singh 2 & 3.

However, Mr Deakin underlined, the Claimant argued that there was more, namely that the Secretary of State was required to (but did not) provide Ugandan officials with details of his contested UK birth certificate, that had the Secretary of State done so the Claimant would not have been removable at all, and that therefore his detention breached Hardial Singh 2 & 3.

As to that, Mr Deakin submitted, in short, that:

In addressing the issues in more detail, Mr Deakin divided the Claimant’s period of detention into three periods, as follows:

The first period included the admitted period of unlawful detention from 17 March 2014 to 10 April 2014, and nine subsequent reviews and authorisations, the facts of which are variously summarised in paras 26, 31, 35, 36, 41-43, 47, 50 & 53 above. Mr Deakin submitted that the crucial and overarching issue in respect of this period was whether there was sufficient prospect of removal to justify the Claimant’s detention – with the key issue being what barriers stood in the way in of his removal during this period.

In that regard Mr Deakin submitted that:

As to the following matters relied upon by the Claimant:

Mr Deakin underlined, for the avoidance of doubt, that the Defendant did not suggest that the Court should not look at statements made by the Ugandan authorities as to whether or not they would be prepared to accept returns, and/or as to the likely timescale of such returns. Such statements were relevant, and might well be critical to an analysis of whether there was sufficient prospect of removal within a reasonable time. His submission was that the actual mechanism by which the Government sought to obtain travel documentation was, without more, a matter of foreign policy between two sovereign states and not open to challenge in this Court.

Ultimately, in relation to the first period, Mr Deakin submitted that the position was straightforward, namely that:

As to the second period (11 December 2014 to 14 April 2015) which ran from the date of the Claimant’s return from his failed removal to the completion of his ETD application, Mr Deakin submitted that none of the complications in relation to the provision of information applied, and that the key issue was whether the Court considered there to have been sufficient prospect of removal within a reasonable period.

Having repeated the observations of Richards LJ at para. 38 of the judgment in R (Muqtaar) v SSHD (see para. 181(3) above), namely:

“There can 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.”

Mr Deakin submitted that, against that background, and given the Claimant’s risk profile, the detention during the second period was lawful.

Mr Deakin highlighted aspects of the tenth to the fourteenth reviews (as variously summarised in paras 65-67, 72/73, 80/81, 86/87 & 89 above), and the Interim Operational Instruction of March 2015 (see para. 84 above) which made clear that ETDs were required to support a removal to Uganda, and submitted that the Defendant was entitled to carry out appropriate investigations as to removability following the Claimant’s return, and that the fact that the Defendant was not able to identify a precise timescale during the second period did not render the Claimant’s detention unlawful. Rather, there was, Mr Deakin submitted, a sufficient prospect of removal within a reasonable time throughout the second period.

As to the third period (15 April 2015 to 18 June 2015) which ran from the completion of the ETD to the Claimant being granted bail, Mr Deakin submitted that there was sufficient prospect of removal within a reasonable time to warrant maintaining detention to enable the ETD process to be completed and to have the results properly communicated to the Defendant. Mr Deakin also underlined aspects of the fifteenth and sixteenth reviews (as variously summarised in paras 92 & 95/96 above), and submitted that the assessments were balanced and appropriate and that there was no reason for the Court to go behind them.

As to the Claimant’s assertion that he had been informed following his face-to-face meeting at the Ugandan High Commission on 29 April 2015 that he would not be accepted for return to Uganda, and that from that point, or from when the Defendant’s attention was drawn to that fact, it was clear that the Claimant could not be removed within a reasonable time, Mr Deakin submitted that:

Finally, and overall, Mr Deakin submitted that throughout the Claimant’s detention there was sufficient prospect of removing him within a reasonable period to warrant his detention - even when it was not precisely clear how long the detention would last.

As to justiciability, Dr Wilcox responded that, following discussions between him and Mr Deakin, it had become clear that what the Defendant was objecting to was the contention that the Defendant had breached its own policy, or had otherwise materially misled the officials in the Uganda High Commission, in its efforts to secure verification of the Claimant’s expired passport, particularly in relation to evidence that:

However, Dr Wilcox went further than that, and submitted that any suggestion that the court was prevented from adjudicating on the lawfulness of the misdirection itself was not supported by authority, given that:

Hardial Singh 2 & 3 - Conclusions

For the reasons given by Mr Deakin (summarised in e.g. para. 190(1)-(3) & (5) above) in my view there is nothing in, or in relation to, the guidance documents relied on by the Claimant (see para 178) which supports this head of claim.

As indicated above, the Defendant accepts that officials failed to carry out the Claimant’s first detention review in accordance with policy, and that therefore the Claimant’s detention between 17 March 2014 and 10 April 2014 was unlawful. There is an issue, to be resolved in due course, as to the extent of the resultant damages.

With the burden and standard of proof in mind, it is for me to decide whether the Hardial Singh principles have been complied with – i.e. based on the whole circumstances as known to the Defendant at the relevant time, I must decide objectively whether there was sufficient prospect of removal within a reasonable time to warrant detention, or continued detention, when account is taken of all relevant factors. In accordance with R (Muqtaar) v SSHD (above) there can be a sufficient prospect of removal without it being possible to predict a date by which, or period within which, removal can reasonably be expected to occur.

The main relevant factors (see para. 170 above) include the length of the period of detention; the nature of the obstacle(s) preventing deportation; the risk of absconding; the risk of offending (which is important in a case like this where there has been an escalating pattern of serious criminal offences); the diligence, speed and effectiveness of the steps taken by the Defendant to surmount such obstacles; the conditions of detention; and the effect of the detention on the detainee and his family.

To avoid repetition, I have no doubt, given his escalating criminal record, gang affiliation, and conduct in custody, that at the time that he was first detained, and throughout thereafter, the Claimant posed a high risk of absconding, a high risk of re-offending, and a high risk of causing serious harm thereby. Whilst not trump cards, each of those factors was relevant and significant.

I found Mr Deakin’s arguments and reasons (as summarised in paras 189, 190(4) & 192-198) to be telling.

At the time of the authorisation of the Claimant’s detention on 27 January 2014 (see paras 20 & 21 above) it had already been (rightly) concluded that he was liable to automatic deportation as he was a foreign criminal and had been sentenced to more than 12 months’ custody. Thus he would be required to be detained unless such detention was inappropriate. The expired Ugandan passport was evidence of Ugandan nationality. Even if born in the UK he was, by the operation of the British Nationality Act 1981, Ugandan. The observation that the Claimant “…..is at the beginning of the deportation process. His removal could not be realistically expected to be effected in the near future” did not render detention unlawful. It was no more than a reflection of the fact that the process would be highly likely to include an appeal by the Claimant (which would be unlikely to succeed, but likely to take some considerable time to complete). Against the background that some steps had already been taken to check the validity of the UK birth certificate, and albeit that they had come to nothing by that stage, it was within the appropriate range to concentrate on investigating the passport, and to identify the need for a decision in relation to deportation to be made at the earliest opportunity. Taking into account the risks posed by the Claimant, the Hardial Singh principles were complied with.

By the time of the first review on 10/11 April 2014 (see paras 31 & 32 above) the Claimant had been detained (on 16 February 2014); the Deportation Order had been made (on 17 February 2014); a Notice of Decision (served on 19 February 2014) had included a presumption (in the Claimant’s favour) that he had been born in the Central Middlesex Hospital, but rightly concluded that he was a Ugandan citizen; the Claimant had sought to appeal (out of time) to deportation and (on 4 April 2014) had been given permission to do so. Equally, whilst guidance of general application had been given in relation to returns on an EUL, and complex issues had arisen in relation to two other proposed returns to Uganda (see paras 25, & 27-29 above) the Defendant was entitled to proceed on the basis that a return was still possible. The review (para. 31 above) rightly recognised the need, before the next review, to establish whether the evidence of nationality held was sufficient for removal on an EUL. The authority (see para. 32 above) spelled out the risks that the Claimant posed and why. In my view the Hardial Singh principles were complied with.

By the time of the second review on 12 May 2014 (see para.35 above) the Claimant had tried to hang himself, and it had been confirmed that, as the Defendant had a copy of his Ugandan passport, the Claimant could be removed on an EUL once his appeal rights had been exhausted (see para.34 above). The need, prior to the next review, to establish that the passport was sufficient for an EUL was recognised. In my view, notwithstanding the Claimant’s attempt to hang himself, and the apparent minor error as to the date of the appeal hearing (in this and other reviews) the Hardial Singh principles were complied with.

By the time of the third review on 9 June 2014 (see para. 36 above) it had been confirmed that a Ugandan passport page and bio data were sufficient to remove on an EUL. It was appropriate to proceed on the basis that, once the Claimant had exhausted his appeal rights, removal could be made within a reasonable time. In my view, the Hardial Singh principles were complied with.

By the time of the fourth review on 7 July 2014 (see para. 41 above), the Defendant had (on 10 June 2014) supplied the Ugandan High Commission with a copy of the Claimant’s expired passport and requested confirmation that he could be removed on an EUL, and (the following day) the High Commission had confirmed that it had no objection to the removal, but asked to look at the original. In my view, the Hardial Singh principles were complied with.

In my view, it is self-evident that the Hardial Singh principles were also complied with in relation to the fifth review on 4 August 2014 (see para. 42 above) and the sixth review on 1 September 2014 (see para. 43 above).

By the time of the seventh review on 29 September 2014 (see para. 47 above) the Claimant’s appeal (during which it had not been disputed that the Claimant was Ugandan) had been heard on 24 September 2014, and judgment had been reserved (see para. 44 above); and on 25 September 2014 there had been a meeting between representatives of the Defendant and the Ugandan High Commissioner (see para. 45 above) to discuss Ugandan citizenship laws and how they related to a number of ‘home grown’ criminal casework cases, noting a recent change in the EUL system, and a possible further change. However, in my view, against the background of the confirmation already given by the High Commission in relation to the Claimant, and the absence of any withdrawal of that confirmation, the Claimant was entitled to proceed upon the basis that removal within a reasonable time was still realistic in his case. Hence, in my view, the Hardial Singh principles were complied with.

By the time of the eighth review on 27 October 2014 (see para. 50 above) the Defendant had issued an Interim Operational Instruction on 6 October 2014 in relation to removals to Uganda on EULs (see para. 48 above) which clarified a hybrid arrangement that had been agreed with the Ugandan authorities – and which could still be used if there was supporting evidence, with the further ability (on a case by case basis) to seek an ETD; and Judge Wiseman had given judgment on 16 October 2014, in emphatic terms, confirming that the Claimant was Ugandan, and dismissing his appeal (see para.49 above). In the result, the Defendant was entitled to conclude both that the risk of absconding was likely to have increased, and that removal might be arranged within weeks. In my view, the Hardial Singh principles were complied with.

By the time of the ninth review on 24 November 2014 (see para. 53 above) the Claimant’s removal to Uganda had been authorised on 31 October 2014 (see para. 51 above), and was set for 18 December 2014. In my view the Hardial Singh principles were complied with.

By the time of the tenth review on 19 December 2014 (see para.65 above) the Ugandan High Commission had verified the original of the Claimant’s expired Ugandan Passport on 8/9 December 2014 (see para. 56 above); the attempt to remove the Claimant had taken place over 9-11 December 2014 (see e.g. paras 58 – 64 above), and the Ugandan authorities had a copy of the Claimant’s UK birth certificate. In my view there was nothing in the Minute dated 10 December 2014 (see para. 59 above) which precluded the ultimate decision made in the review that removal within a reasonable time remained a realistic prospect. Given that the Claimant had been in detention since February 2014, combined with the refusal to admit him, the review required and was given anxious and careful consideration by appropriately senior members of staff, including a Deputy Director and the Head of Casework South. In my view, against the background of the Interim Operational Instruction issued on 6 October 2014 (see para. 48 above), the support of the High Commission, and the increased level of risk posed by the Claimant, the Hardial Singh principles were complied with.

By the time of the eleventh review on 19 January 2015 (see para. 72 above) the Defendant had received representations on behalf of the Claimant that he was not a Ugandan National (see para. 68 above), and on 30 December 2014 the Claimant’s application for permission to appeal to the Upper Tribunal (which included an acceptance by counsel that the Claimant was Ugandan) had been refused (see para. 69 above). The review required, and was given, anxious and careful consideration by appropriately senior members of staff, including a Director (who had already raised the wider issue with CROS and the FCO, and who expected movement on the issue in the near future). In my view, the Hardial Singh principles were complied with.

By the time of the twelfth review on 16 February 2015 (see paras 80 & 81 above) the Claimant had asked why he was still being detained and the Defendant had replied to the effect that, for the reasons explained in the reply, the Claimant remained considered to be a Ugandan national (see paras 74 & 75 above). The Defendant’s Country Specialist team had indicated that confirmation had been sought that the Claimant would be permitted to enter Uganda, and that a meeting was being arranged with the High Commission . In the review it was recorded that the Country Specialist Team had advised on 10 February 2014 that the proposed meeting with the High Commission was likely to be agreed imminently. In those circumstances, and given the risks posed by the Claimant, the Hardial Singh principles were complied with.

By the time of the thirteenth review on 11 March 2015 (see paras 86 & 87 above) CROS had confirmed on 3 March 2015 (see para 83 above) that EUL / ETD removals to Uganda were on hold, but that removal talks were to take place that week, in which CROS had agreed to enquire about the Claimant’s case. Shortly thereafter (see para. 84 above) an Interim Instruction in relation to removals to Uganda had been issued which indicated that an agreement had been reached to suspend the use of EULs and to institute an ETD process – the minimum requirements for which were set out. Thereafter, on 9 March 2015, in an email in relation to the Claimant (see para. 85 above) CROS had advised the completion of an ETD application. The review (which involved an Acting Assistant Director) was thus entitled to conclude that removal could be achieved within a reasonable period, albeit that it may be some way off. Thus, against the background of the risk factors, the Hardial Singh principles were complied with.

At the time of the fourteenth review on 13 April 2015 (see para 89 above) it was recorded that the Claimant had been in custody for fourteen months, and that therefore serious and careful consideration had been given to his detention. It was further recorded that the Defendant “will now be submitting an ETD”. The Deputy Director who authorised detention noted that it was a difficult case, carefully balanced the competing factors, and identified the necessary actions to be taken within two weeks of the review. In my view, again against the background of the risk factors, the Hardial Singh principles were complied with.

On 14 April 2015, the day after the fourteenth review, the Claimant’s ETD application form was completed. On 17 February 2015 it was submitted to the Ugandan High Commission, and on 29 April 2015 the Claimant had a face to face interview there, absent any representative of the Defendant (see para. 90 above). On 7 May 2015 (see para. 91 above) the Defendant was advised to wait for a month before contacting the High Commission. Miss Buckle understood that the issue was being referred to the authorities in Uganda.

The fifteenth review took place on 11 May 2015 (see para.92 above). The events since the fourteenth review were recorded, and it was observed that the actions suggested by that review had been completed, and that the Defendant had been advised that the outcome could not be chased for a month. In my view, again against the background of the risk factors, the Hardial Singh principles were complied with.

On 28 May 2015 (i.e. a month after the Claimant’s face to face interview at the High Commission) his solicitors wrote to the Claimant (see para.93 above) asserting that (at the time of the interview) he had been told that an ETD would not be issued, and that therefore his continued detention was unlawful. On 3 June 2015 (i.e. some five weeks after the interview – see para. 94 above) the Defendant chased the High Commission without success.

The sixteenth and final review took place on 8 June 2015 (see paras 95 & 96 above). It required, and was given, careful consideration, including by an Acting Assistant Director. In my view, given the Claimant’s criminal background and interest in the outcome, the Defendant was entitled not to be persuaded by his claim that there would be no ETD, but rather to await the official outcome from the High Commission. Equally, at that point, five days after the outcome had first been chased, the Defendant was entitled to conclude that there remained a reasonable prospect of removal within a reasonable time. Consequently, and as ever against the background of the risk factors, the Hardial Singh principles were complied with.

Seven days later, on 15 June 2015, and thus nearly seven weeks after the Claimant’s face to face interview, the High Commission was chased again, without success. Had the Claimant’s detention gone much beyond 18 June 2015, I would have concluded that the Hardial Singh principles were not complied with. However, the detention did not go beyond that date, and thus I conclude that the principles were complied with.

In all those circumstances it is, again, unnecessary to reach any conclusions in relation to justiciability.

For the reasons set out above, and save for the admitted period of unlawful detention from 17 March 2014 to 10 April 2014, the claims are dismissed.

Counsel to draft a suggested Order, to encompass any necessity for further skeleton arguments in relation to damages, costs etc, within 14 days.

Finally, I must apologise, most sincerely, for the length of time that it has taken to complete this judgment, and thank the parties for their very considerable patience.