Kamal v The Home Office

The Claimant, an Iraqi national, challenges the legality of his detention by the Defendant which commenced on 27 August 2012 and ended on 7 May 2013 when he was deported to the part of Iraq under the administration of the Kurdistan Regional Government (“KRG”).

The Claimant contends that his detention was in breach of the principles first set out by Woolf J, as he then was, in R v Governor of Durham Prison ex. p. Hardial Singh [1984] 1 WLR 704, in breach of the Defendant’s policy set out in Chapter 55.10 of the Enforcement Instructions Guidance and/or in breach of the Claimant’s rights under Article 5(1)(f) ECHR.

This hearing is concerned with liability only.

Mr Greg Ó Ceallaigh appeared for the Claimant and Mr Alasdair Henderson appeared for the Defendant.

The Claimant gave evidence, through an interpreter, by video-link from Iraq. Ms Sharon Buckle gave evidence for the Defendant.

The legal framework for determining the lawfulness of immigration detention is well established and not in dispute.

In R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, Lord Dyson JSC summarised the Hardial Singh principles at para 22:

“(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 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.”

At paragraph 104 in Lumba Lord Dyson considered the question “How long is a reasonable period?”. He referred to his judgment in R (I) v Secretary of State for the Home Department [2003] INLR 196, where at para 48 he said:

“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”

Detention may be lawful even if the Secretary of State is unable to identify a finite period within which deportation will be achieved. In R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, Richards LJ said at para 65:

“Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was ‘some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be’ (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious reoffending if A were released.”

At para 107 in Lumba Lord Dyson approved Toulson LJ’s treatment of the issue of the relevance of a risk of reoffending in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804. Toulson LJ said, at para 55:

“A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences.”

As to the risks of absconding Lord Dyson made the further observations:

(i)

“The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place” (para 121).

(ii)

“It is common ground that a refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. But I would warn against the danger of drawing an inference of risk of absconding in every case. It is always necessary to have regard to the history and particular circumstances of the detained person” (para 123).

In R (I) v Secretary of State for the Home Department Dyson LJ, as he then was, warned against overstating the relevance of the risk of absconding. He said at para 53:

“…the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake.”

In R (JS (Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 1378 MacFarlane LJ said at para 45:

“Where… the issue relates to a period of detention, the basic facts relating to the dates upon which an individual was detained and the administrative steps that were undertaken are unlikely to be in issue. The initial burden of proof would be upon the claimant to establish the fact of detention; thereafter the burden will shift to the Secretary of State to establish lawful authority for detention as a matter of principle. The main focus of the hearing, however, is likely to be the evaluation of whether or not what had occurred was, in all the circumstances, ‘reasonable’. In that context consideration of the burden of proof seems to be neither apt nor useful.”

The Secretary of State’s policy in relation to detention at the material time was contained within Chapter 55 of the Enforcement Instructions and Guidance. The policy confirmed that there is a presumption in favour of release (which also applies to foreign national prisoners); wherever possible alternatives to detention should be used; and detention should not exceed the period reasonably necessary to secure removal.

Any decision to detain must be compatible with Article 5 ECHR. It must therefore be for the relevant Convention purpose such as to remove someone liable for deportation or to prevent the commission of a crime; and in accordance with law; and proportionate.

The Claimant was born in Iraq on 1 October 1984. He entered the UK clandestinely on 29 August 2001 and claimed asylum. On 25 September 2001 that claim was refused but he was granted Exceptional Leave to Remain until 25 September 2005.

On 19 July 2005 the Claimant was convicted of sexual assault and affray. He received two sentences of three months’ detention in a Young Offenders’ Institution, to run concurrently.

On 16 August 2005 the Defendant wrote to the Claimant warning him that further criminal conduct may lead to his removal from the UK.

On 3 May 2007 the Claimant was granted Indefinite Leave to Remain.

On 22 February 2008 he was convicted of criminal damage and failing to notify a change of address under the sex offender provisions. He was fined £250.

On 22 July 2008 and 4 January 2011 two applications by the Claimant for naturalisation were refused on the basis of his failure to meet the good character requirement.

On 28 November 2001 the Claimant was convicted of burglary and theft, and sentenced to 18 months’ imprisonment.

On 10 April 2012 the Defendant notified the Claimant of his liability to deportation as a consequence of his criminal conduct.

On 17 April 2012 the Claimant returned his Notice of Liability for Deportation Questionnaire, stating that he wished to claim asylum. He submitted a Statement of Additional Grounds, detailing the grounds for his asylum claim on 30 July 2012. His claim for asylum was based upon his fear that if returned he would not be safe in Iraq due to the bombings.

On 6 August 2012 the Defendant considered whether the Claimant ought to be detained pending deportation. It was decided he should be detained to effect removal from the UK, because it was likely he would abscond if given temporary admission or release and there was a risk of further reoffending. He was informed that the decision to detain was reached on the basis of the following factors:

•

“You have failed to observe the United Kingdom immigration laws by entering by clandestine means.

•

You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place.

•

You have shown a lack of respect for United Kingdom law as evidenced by your convictions for Burglary (aggravated/breaking and entering).

•

You have committed a number of offences between 19 July 2005 and 28 November 2011 and there is a significant risk that you will re-offend.

•

You have committed an offence and there is a significant risk that you will re-offend.

•

Your unacceptable character, conduct or associations.”

On 27 August 2012 the Claimant was detained.

On 4 September 2012 the Defendant considered whether the Claimant satisfied any exceptions to deportation and concluded that he did not. On 5 September a deportation order was issued against the Claimant. On the same day the Defendant wrote to the Claimant notifying him of her decision. In relation to his claim for asylum it was noted that his claim was due to the general country situation in Iraq, and that he had not made any claims that he had any particular problems in Iraq before he left the country, or that there is any specific risk to him as an individual on his return to Iraq (para 18). By contrast his previous asylum claim stated that he was at risk due to his brother’s activities in the Kurdish government’s intelligence service, however he had not made any such claims in his current asylum claim. His previous account was found not to be credible (para 19). He had not provided any further information which would lead the Defendant to overturn the findings contained in the letter of 25 September 2011 (para 20).

On 29 September 2012 the Claimant indicated a willingness to participate in the Assisted Voluntary Return Scheme. On 2 October the Defendant wrote to the Claimant informing him that he qualified for financial assistance on his return to Iraq under the Facilitated Return Scheme (“the FRS”). On 3 October the Claimant applied for a place on the FRS.

The Claimant’s Detention Review (“DR”) of 4 October 2012 contained an assessment of the risk of absconding (Q6):

“The applicant is aware that he will be returned to Iraq as soon as a travel document is made available; it is suggested that he would have little incentive to remain in contact if released at this point.”

The assessment of risk of reoffending and harm to the public (Q7) stated:

“Mr Ohmed was issued with a warning letter following his convictions on 19 July 2005; despite this Mr Ohmed has received a further conviction for burglary and theft. His actions demonstrate that he would present a significant risk of reoffending if released at this point.”

On 8 October 2012 the Claimant was accepted on the FRS.

On 12 October 2012 Duncan Lewis, the Claimant’s then solicitors, wrote to the Defendant asking what action, if any, the Claimant could take to speed up the removal process.

On 15 October 2012 the Defendant completed an FRS referral pro-forma which stated that the Claimant had been advised to approach the Iraq Embassy to request a travel document.

On 18 October the Defendant reviewed the Claimant’s detention and provided a Monthly Progress Report to the Claimant. A DR dated 22 October 2012 stated that:

“There are currently no barriers to removal apart from the requirement of a travel document. The [Claimant] is requested to provide evidence of his identity or approach the Iraq Embassy to request assistance in documenting him. It is acknowledged that [the Claimant] has applied for FRS, however it is considered that he is aware that he will be returned to Iraq once a document is issued; it is therefore considered that he would have little incentive to remain in contact if released at this point.”

On 22 October the Defendant responded to the letter of 12 October from Duncan Lewis (see para 31 above):

“…A travel document interview has been scheduled for 13 November 2012, however your client is asked to submit any evidence that he holds to demonstrate his identity and nationality to ensure that a travel document is obtained promptly.

If your client does not hold any evidence he is asked to contact any family or friends who are able to obtain evidence of his identity and nationality. If no evidence can be obtained your client is asked to contact the Iraq Embassy personally to request assistance in obtaining a travel document. It is likely that he will be asked to provide the contact details and telephone numbers of Iraqi nationals who are able to verify his identity; your client is therefore asked to submit these details to the UK Border Agency at the earliest opportunity.”

On 13 November 2012 the Defendant interviewed the Claimant and the Bio-Data Information document was completed.

Ms Buckle said (at para 25 of her witness statement) that:

“A copy of the bio-data form was sent to the British Consulate General (the FCO representation in Erbil) to elicit their view as to whether the information collated was sufficient to assist Kurdistan Regional Government officials in establishing if the claimant was from the Kurdistan Region of Iraq.

The relevant official at the British Consulate General was of the opinion that supporting evidence in the form of an Iraqi ID card, birth certificate or similar identity document, would be necessary to assist KRG officials in confirming the subject’s identity and consequently that he originated from the Kurdistan Region. If supporting evidence was not available, additional information in the form of a contact telephone number for a family member(s) in Iraq would assist KRG officials in their search of relevant records.

This information was relayed to the UK Border Agency case owner to undertake further enquiries with the claimant.”

On 15 November the Claimant’s continued detention was reviewed and was maintained. The review stated:

“In regard to documentation, please continue to request supporting evidence for the ETD [Emergency Travel Document] and liaise with CST.”

A case note for 15 November 2012 states that:

“Mr Kamal is keen to return to Iraq but does not have any supporting evidence.

He claims he has never held a passport but was issued a ID card which is now lost. He does not know where his birth certificate is.

He wishes for FRS to inform him of when the document has been submitted as he is happy to contact the Iraqi Embassy directly to try and speed up the process.”

The Claimant’s monthly report dated 19 November 2012 states:

“You will be returned to Iraq as soon as a travel document is made available. If you have any evidence of your identity or nationality you are asked to submit this to the UK Border Agency in support of any application.

If you do not have any evidence of your identity or nationality you are advised to contact the Iraq Embassy to request assistance in obtaining a travel document.”

On 23 November the Defendant’s caseworker noted that the bio-data had been passed to the team-worker in CST (Country Specialist Team) to see if the information was suitable for an ETD “however he does not think this will be quick”.

The Claimant called the Defendant in early December 2012 to ask about his situation and about when he would be returned to Iraq.

On 7 December 2012 the Claimant’s solicitors telephoned the Defendant to ask how the application was progressing. The Case Record Sheet (CRS) records that “unless [the Claimant] gives us more documentary evidence to confirm his connection to Iraq it is highly unlikely that he can obtain an ETD. Also he could be withdrawn from FRS if he does not supply this information. This will be stressed in his DR due soon”.

The DR of 14 December 2012 stated:

“It is not clear from the DR where in fact [the Claimant] would like to return and this must be established in order to progress the ETD. Once this has been established you will need to liaise with the relevant CST officer.”

On 18 December a quantity of cannabis was discovered in a parcel delivered to the Claimant. The case note states:

“Mr Ohmed confirmed that he was expecting something and stated that he had asked for hash as he was feeling stressed.”

On 10 January 2013 the Claimant’s continued detention was reviewed and maintained. The DR noted:

“You stated that you have written and given him three weeks within which to produce supporting evidence and details about his family. Unfortunately, this has not been followed up adequately. I will suggest you give him another two weeks from today to comply and failure to do so would result in him being withdrawn from FRS.”

On the same day a monthly report for the Claimant stated:

“On the information you supplied in your travel document interview it is highly likely that a travel document might be difficult to obtain. It would be helpful if you or a contact could contact the Iraq Embassy and to see if you have further evidence of your Iraq nationality like a birth certificate or find you ID card or get a … which can be handed to UKBA staff at the IRC [sic].”

On 15 January 2013 the Claimant said that he could not supply any evidence as he had no family and requested someone from the Iraq Embassy interview him. He was told that was not possible. He then asked if someone could visit him to assist in confirming his identity. The caseworker noted:

“Have arranged for an IO to visit him with a list of helpful documents to try to get more info out of him.”

On 17 January the Claimant was interviewed. He repeated that all of his family was dead and there was no-one to contact. He said he wanted to be taken to the Iraq Embassy to speak with them.

On 8 February 2013 the Claimant’s continued detention was reviewed. The officer commented:

“The only barrier to his removal is Laissez Passer from the Iraqi Embassy, but he appears to be not complying – by providing important information regarding his identity and nationality. Please look into withdrawing him from FRS if more than two weeks has passed since your last request for information. I agree detention is maintained for another 28 days.”

On 10 February a monthly progress report was sent to the Claimant. On the same day his facilitated return approval was withdrawn. This was done as the Claimant had not provided any evidence of identity as had been requested. When the letter was served he said he did not have any identity documents because he left Iraq young and he did not have any family in Iraq as they had all died. He claimed that when he phoned the Embassy they said they would interview him but would not do a travel document over the phone.

On 26 February 2013 the Defendant made a note regarding progress of the case:

“E-mail forwarded to the offender manager informing of the case position and querying whether their records indicate the existence of any family anywhere. Response awaited.

E-mail also forwarded to [redacted] of the Country Specialist Team outlining that the FRS team referred this case to him on 23/11/12, setting out the position of the case and querying whether checks have been conducted with the British Consul General in Erbil and whether an application for a Laissez Passer may be submitted to the Iraqi Consulate in London. Response awaited.

Further e-mail forwarded to the detention services intelligence team querying if they are able to check whether there are any identity documents held at the removal centre that we may not be aware of. Also queried whether I may be provided with details of visitor/phone records as we may be able to approach any individuals noted for assistance. I further outlined that Mr Kamal had recently received a parcel that had to be confiscated as it was believed to contain an illicit item after indications were received by a drug dog. I have therefore queried details of who/where the parcel originated from.”

This note was written by a new caseworker who was appointed on 21 February 2013.

On 26 February 2013 the Claimant complained about his neighbour and stated that if “officers do not sort him out, I will sort him out”.

On 3 March a quantity of cannabis was found in a scart lead that had been posted to the Claimant.

On 5 March the Claimant’s continued detention was reviewed. The Claimant was still considered to present a risk of absconding and of re-offending. The DR noted in answer to Q4 (What actions have you taken to progress the case since the last review?):

“… Details of Mr Kamal’s desire to return to Iraq were forwarded to Senior Executive Officer, A. Greenwood, on 05 March 2013 so that the matter could be pursued with the Country Specialist Team official. We were then informed to prepare information that could be submitted to the British Consul General in the Kurdish Regional Government area for checks to be conducted. Such information will be submitted shortly by the CCD Leeds documentation team.”

On 8 March the Claimant’s continued detention was authorised by the Assistant Director, who wrote:

“I consider the history of offending to indicate a high risk of serious harm and of re-offending sufficient to outweigh the presumption of liberty.”

On 19 March 2013 it was noted:

“A copy of the subject’s bio-data has recently been forwarded to the British Consulate General in Erbil. They will liaise with the Kurdistan Regional authorities to verify the veracity of the information submitted before a return can be facilitated. On receipt of the feedback, the case owner will be notified.”

Ms Buckle stated at para 39 of her witness statement that:

“On the basis that the claimant was seemingly not able to provide any additional information, the British Consulate General agreed to submit the bio-data and Iraqi readmission form to the relevant Kurdistan Regional Government official, with an explanation that no supporting evidence was available.”

On 22 March it was noted that the Claimant punched a wall and shouted something aggressive towards an official.

On 25 March 2013 confirmation was received from the Iraqi authorities that the Claimant could be returned to Iraq. On 26 March a CID note states “name amended on CID to match the details of the agreement received from the Iraqi official”. The Claimant’s name was amended to Ohmed Kamal Mohemmed.

On 2 April 2013 the Defendant sent an internal e-mail stating:

“… we are currently in the process of arranging Mr Mohemmed’s (true name confirmed as Ohmed Kamal Mohemmed) removal to Iraq. A provisional date is 13/04/13.”

On 5 April 2013 the Claimant’s continued detention was reviewed.

On 16 April 2013 removal directions were set for 7 May 2013 when the Claimant was removed from the UK to the KRG.

The Claimant made a witness statement dated 23 April 2015, the contents of which he confirmed to be true.

He said his father had died when he was four (that would have been in 1988/9). His mother died in around 2002. He had one brother, Kahlid, who died in around 1996 (para 6).

He did not appeal the Defendant’s decision to make a deportation order against him. He wished to return to Iraq (para 17).

The Claimant said in his witness statement at para 21:

“On 17 January 2013 the Home Office interviewed me again. I told them again that I did not have any family. I also told them that I had been in contact with the Iraqi Embassy to request an interview. I also asked the Home Office to take me to the Iraqi Embassy so I could prove that I was Iraq. They said that they could not take me to the Iraqi Embassy and that I should call them. I called the Iraqi Embassy several times from Morton Hall Immigration Removal Centre. I was given the number for them by somebody in detention. They answered the telephone in Arabic. I do not speak Arabic very well and asked them to speak in English. I told that that I was in detention in long time. I told them I was from Iraq. I asked them to give me a chance and give me an ID card so I could [sic] it to the UK Border Agency so they could send me back to Kirkuk. They said they could not make an ID card for me. They said they did not know who I was and where I was from. They said I did not have any documents. They said they could not be sure where I was from. The number I spoke to was in London.”

The Claimant said that he only ever received two parcels at different times whilst he was in detention. The first parcel was a tracksuit. The second parcel was a big bag of his clothes from Coventry (para 24). He did not receive a parcel in December 2012 containing hash. He said he did not say to the officers that he had asked for hash. He was never charged with anything in relation to this alleged incident (para 25).

Asked by Mr Henderson about the parcels he received when in detention he denied he was sent two other parcels. He said that he was informed that he had been sent something by post but he said “No”. He was told there was drugs in the parcel. He said it did not belong to him. He said he did not smoke drugs. As for the cannabis scart lead in March 2013, he told the officer that if he receives post in his name he should not give it to him because it does not belong to him. He only receives letters/parcels from one person who lives in Coventry. The other two parcels were not from Coventry.

On one occasion his roommate, who was mentally unstable, attacked his eyes. The officers took him to solitary confinement for three days, when he came out of solitary confinement, he was put in a single cell opposite him. The Claimant said to the officers that if they did not keep him safe he would have to defend himself. He did not say that he would “sort him out” (para 26). In answer to questions by Mr Henderson he said that was not a big problem. He just played music during the night which annoyed him and he complained to the officers. He did not make a threat to him.

The Claimant was asked by Mr Henderson about his application for UK citizenship on 18 November 2010. He said that he had no criminal convictions. He said there was no need to mention his conviction in 2005 because it was a long time ago. His solicitor told him not to put it down. He agreed he also had a conviction in 2008. He did not mention that because it would be known to the Defendant. He did not think it was that serious that he had to put it down.

Mr Henderson then asked the Claimant about his application for indefinite leave to remain in 2005. He completed the application form on 7 September 2005. Again he said he had no criminal convictions. He said he “was accused or suspected of an indecent assault but was found not guilty and was released without [charge] no actions were taken against me as it was a missunderstanding [sic]”. Asked to explain that he said maybe it was written down for him. He was not aware of it. At the time he did not speak English well. He agreed that he had been convicted of sexual assault and affray on 19 July 2005.

The Claimant was asked questions by Mr Henderson about information he had given to the Defendant relating to his family. In his application for asylum in 2001 he said his mother’s present address was “unknown”. His father, he said, was in jail, “no news from 1990”. However later in the form there is reference to his father having been “killed in the Iraq/Iran war”. The Claimant said that was not correct. He said his father fought in the Iraq/Iran war in 1988 and did not come back. In the form there is reference to two brothers: Mohammed (age 28 years approx) who was “in jail”; and Sirdar (7 years old) “with my mother in Khanakin”. The Claimant said he only mentioned one brother who was hung [hanged]; maybe he said he was in jail and later hung. He was not called Mohammed. Further he has no brother called Sirdar. He never gave those details about Sirdar. The Claimant said that his mother and his aunt sent him to Europe. His mother went back to Khanakin by herself; his aunt was younger that his mother. In the form there is also reference to an uncle of the Claimant who had been arrested and detained (question 5). It is also recorded that the Claimant said, “when my family were forced out of their home we went to the home of my mother’s relatives in Khanakin” (question 7). He said that his brother was arrested on 15 June 2001 whilst out walking and he has since disappeared (Q9).

Mr Henderson referred the Claimant to the bio-data information he gave on 13 November 2012. He said his mother died in 2009, his father in 1988 and his brother, Khalid, in 1999. It was suggested to him that this information was very different from what he told the Defendant in 2001. The Claimant said that he said the same in 2001 but maybe there was a misunderstanding between him and the interpreter in 2001.

The Claimant said that he did not mention in 2012 his mother’s relatives because they had all passed away.

He did not tell the Defendant that his name might be recorded as Ohmed Kamal Mohemmed because that is not his real name. His real name is Ohmed Kamal. He said there is no Mohemmed in his family.

He denied that he had ever punched a wall and shouted at one of the officers. He said that whilst he was in detention he respected everyone.

The Claimant agreed that in April 2012 (and at an interview on 12 June 2012) when told that he might be deported he had responded that he wanted to stay in the UK as he believed Kirkuk was not a safe place because of the bombing. However when he was transferred to the detention centre and found that people were kept there for 3/4 years he felt he could not handle that and so wanted to go back to Iraq. He said that he withdrew a bail application that he made whilst in the detention centre because he wanted to go back to Iraq.

Mr Henderson asked the Claimant whether he tried to contact any family members in Iraq. The Claimant said he did not have that many relatives. He said he just had one aunt and she is old. Even if he contacted her she could not do anything for him.

Ms Buckle is, and at the material time was, a SEO Operations Manager for Criminal Casework, Leeds within the former UKBA, now the Defendant.

Ms Buckle said that she had no actual involvement in the Claimant’s case. She said that she had spoken to the last caseworker on the case who is in her team.

Ms Buckle explained in outline the nature of the FRS. The guidance, which was before the court, states that “the main aim of the scheme is to promote and assist early removals by encouraging full compliance and co-operation by eligible FNOs (foreign national offenders) to return to their country of origin voluntarily”. FNOs who apply to join the scheme after completing their custodial sentence are eligible for grants up to £750.

Relevant parts of the guidance include the following:

(1)

“An applicant is accepted onto FRS on the understanding that they wish to make a voluntary departure. The applicant is required to:

…

•

comply with any process for obtaining travel documentation, which may require the applicant to:

…

accept responsibility for making an application to the relevant high commission or embassy where a personal application will speed up the process” (page 15).

(2)

“With the exception of provisional cases, the only acceptable barriers to an applicant’s immediate removal are where:

…

•

A travel document is not currently available. For further information on obtaining travel documents, see related link: Travel documentation.

…

If delays of more than six months arise, or become likely, consideration must be given to withdrawing acceptance under the scheme, or replacing formal acceptance with provisional acceptance on the basis of the long-term barriers to departure” (page 16).

(3)

“Delays because of a failure of the high commission or embassy to issue a travel document must be carefully monitored. While such delays might be viewed as outside the control of the applicant, acceptance under FRS places the responsibility on the applicant to assist in the documentation process, including applying for such a document in their own right” (page 18).

Ms Buckle explained that the Country Specialist Team (CST) is the liaison point between caseworkers’ teams and foreign high commissions/embassies. Asked by Mr Henderson why the KRG was not contacted before early March 2013 she said that she thought that once the Claimant was accepted on the FRS in October 2012, under the FRS the Defendant would concentrate on obtaining the information from the Claimant. The CST were contacted in November 2012 for their view as to whether the information that had been supplied was sufficient to obtain an ETD for the Claimant, and their response suggests the information was not sufficient. Ms Buckle said there is a certain route that has to be taken by CST in such a situation to obtain an ETD through the British Consulate General (the FCO representative in Erbil) to elicit their view as to whether the information collated was sufficient to assist the KRG officials in establishing if the Claimant was from the Kurdistan Region of Iraq.

Ms Buckle said there was a good working relationship between the British Consulate and the KRG. She said that she had experience in other cases involving the CST and the KRG of the reaction of the KRG to ETD applications. By February 2013 the British Consulate, through the CST, was in a position to say to the KRG that everything had been done to obtain information from the Claimant as to his nationality and identity. By that time he had been interviewed twice (on 13 November 2012 and 17 January 2013) and in December 2012 he had been requested on his IS151F to supply further written proof of any family in Iraq and to contact the Iraq Embassy. Ms Buckle said that ultimately the KRG had been helpful despite the fact that the wrong name had been given to them.

In relation to the approach to the KRG in February/March 2013 which led to the Iraqi authorities agreeing that the Claimant could be returned to Iraq, Ms Buckle said “we asked a favour”. That was a favour, she said, that was asked “down the line”, but eventually by the British Consul in Erbil of the person she referred to as “the General”. Ms Buckle explained that what she meant by that was that the caseworkers’ team asked if CST would highlight the Claimant’s case and ask if the British Consul would be prepared to look at it and take it to the General despite the fact there was insufficient supporting evidence. Ms Buckle said that in saying this she was not telling the court anything beyond what was in the documents. She said that they were dealing with about 70-100 Iraqi cases at the time, the majority of which had very little in the way of documentation.

Ms Buckle said that if the Iraqi Embassy in London had wished to see the Claimant in person, then that would have been arranged but she said that is not the way they proceed.

The relevant facts in relation to the Claimant’s immigration detention are not materially in dispute. They are recorded in the contemporary documentation to which I have referred.

To the extent that the Claimant took issue in his evidence with matters recorded in that documentation I reject his evidence.

I reject the Claimant’s explanations for failing to disclose his convictions on two occasions (see paras 69-70 above). It seems to me that it is implausible that his solicitors would have told him that his convictions were spent or that he did not realise how serious they were. His excuse that he felt that the Defendant could find out that he had previous convictions from their records was not, in my view, a good reason for answering questions untruthfully.

In my view these untruths and the explanations for them, which I reject, adversely affect the Claimant’s credibility.

The Claimant gave conflicting information about his family and identity. The information he gave about his family in his asylum application in 2001 (see para 71 above) differs from the bio-data information he gave in 2012 (see para 72 above). Mr Ó Ceallaigh submits that no reliance should be placed on the Statement of Evidence Form completed in 2001 as the copy that has been produced is incomplete and does not contain the Claimant’s signature confirming the contents to be true. The Claimant denies that he has a younger brother. There is no other evidence of the Claimant having a younger brother. I shall therefore proceed for present purposes on the basis that there may have been, as the Claimant suggests, a misunderstanding that led to the interpreter referring to a younger brother (although the interpreter spoke the same language as the Claimant). Nevertheless there remains the unexplained conflict between the information given by the Claimant about his father and elder brother in 2001 and 2012. Within the 2001 application itself the Defendant “noted a very large discrepancy between the details given in Part B of [the Claimant’s] Statement of Evidence Form and the details given in Part C” (see Reasons for Refusal dated 25 September 2011, para 9). Further, in 2001 the Claimant referred to other relatives, for example an uncle and to his mother’s relatives. In his evidence the Claimant referred to an aunt (see para 71 above).

The Claimant applied to join the FRS and the documentation suggests that he genuinely wished to return to Iraq rather than remain in detention for what he feared may have been a number of years. However I am not satisfied that the Claimant co-operated fully with the Defendant in providing information as he was required to do. He could have provided information about his aunt, extended family and grandparents. He provided no evidence about deceased relatives. The fact that they were deceased is not to the point. The Claimant was a few months short of his 17^th birthday when he entered the UK and appears to have had more information about his family then than he revealed in 2012. Further, as Mr Henderson observed, he did not even suggest that he might have been registered with the surname “Mohemmed”. In his evidence he said that there is no Mohemmed name in his family (see para 74 above), yet that appears to have been his mother’s family name and the Iraqi authorities accepted his return with the surname Mohemmed.

It seems to me that the Claimant could and should have provided further information when on the FRS as to his identity or at least have properly clarified and explained the information he gave.

As I have said where there is a conflict between the contemporaneous documentation and the oral evidence of the Claimant I prefer the former. With regard to the Claimant’s behaviour in detention I make the following findings:

Mr Ó Ceallaigh criticises the evidence of Ms Buckle as to the reason why the Defendant did not approach the KRG earlier than March 2013. That evidence was not in her witness statement and was only given in her oral evidence in re-examination. In those circumstances I asked Ms Buckle to return to court the following morning so that she could be further questioned by Mr Ó Ceallaigh after he had had proper opportunity to consider her evidence. Ms Buckle gave clear evidence based on her experience and reading of the material documentation (see paras 82-85 above). I accept her evidence.

Mr Ó Ceallaigh realistically accepted that ultimately this case turns on the application of the Hardial Singh principles. The allegations of breach of policy and of Article 5 ECHR, in my view, add nothing to the Claimant’s case.

It is common ground that the first Hardial Singh principle is satisfied. It is principles 2, 3 and 4 that are in play in the present case.

Mr Henderson accepts that it is for the Defendant to prove that the Claimant’s detention was lawful throughout. He does not suggest that the Claimant became responsible for his removal when he was on the FRS, however he submits that the focus shifted because the Claimant had accepted responsibility to assist in the documentation process (see para 81 above).

In summary the issues in dispute are:

Mr Ó Ceallaigh submits that this is not really a case where the credibility of the Claimant is material. In any event findings as to the Claimant’s credibility are only relevant to Hardial Singh principles 2 and 3, but not to principle 4 which is concerned with the diligence of the Defendant.

The Claimant contends that had the Defendant taken reasonable steps to decide whether to deport him, and then pursued his documentation with reasonable diligence, he would not have needed to enter immigration at all. Further it is said that the Defendant made no effort whatsoever to contact the KRG until March 2013, six months after the Claimant asked to be returned to Iraq. The Claimant’s detention was, he contends, in effect on the basis of his criminal history when there was no plausible risk of him absconding.

The focus of Mr Ó Ceallaigh’s submissions was on the period from 23 November 2012 to 26 February 2013. He suggested that during that period no action was taken by the Defendant directed towards the Claimant’s removal save to ask him for more information. The significance of the outside date is that on 21 February 2013 a new caseworker was assigned to the Claimant’s case, and on 26 February 2013 that person took action (see para 50 above). Mr Ó Ceallaigh makes no criticism of the Defendant’s diligence after that date.

As for the first period of detention about which Mr Ó Ceallaigh complains, namely from 27 August to 5 September 2012, he says that the sole basis for detention in that period was in order to facilitate the deportation decision, however, he submits, there is no reason why that decision could not have been taken much earlier when the Defendant knew from 17 April 2012 why the Claimant said he could not be returned to Kirkuk. In support of this submission Mr Ó Ceallaigh referred to the case of JS (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 1378.

In my view JS (Sudan) does not assist the Claimant. As MacFarlane LJ said at para 50:

“The question of whether or not the Secretary of State is acting unreasonably where she has not started the process of evaluation during the term of custody will turn upon the specific facts of each case and form part of the court’s overall assessment of reasonableness in the light of all the relevant circumstances.”

The facts of that case are very different from the facts of the present case where there was no recommendation of deportation by the judge. The Claimant’s case was considered promptly in April 2012, well within the custodial sentence. He was notified of his liability for deportation on 10 April 2012. In his response received on 17 April 2012 he stated that he wished to remain in the UK as he did not believe that Kirkuk is “a safe place due to the bombing”. In July 2012 he said that he would be making an asylum claim and on 31 July 2012, following the Defendant’s letter of 27 July, he gave a little further information as to his reasons for claiming asylum. The decision to detain him was made in 27 August 2012 and the deportation order was made on 5 September 2012.

I do not consider that it was unreasonable for the Defendant not to make a deportation order before the Claimant was moved to detention in circumstances where he had raised concerns about his safety that might have amounted to an asylum claim that had to be considered.

I turn next to the second period on which Mr Ó Ceallaigh focussed, when the Claimant was on the FRS. The obligation remained with the Defendant to obtain or at least pursue the ETD required by the Claimant, yet there was, Ms Buckle accepted, limited activity by the Defendant in the three month period from 23 November 2012 to 26 February 2013. There was, Mr Ó Ceallaigh submits, insufficient evidence as to why what happened in February/March 2013 could not have occurred in November 2012. He described the evidence of Ms Buckle as speculation at best. In this regard Mr Ó Ceallaigh referred to the cases of I v Secertary of State for the Home Department [2010] EWCA Civ 727, per Munby LJ at paras 53-55, R (Amin Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) per John Howell QC at para 34, and R (M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin) per Elisabeth Laing J at paras 45-46. Mr Ó Ceallaigh accepted that Ms Buckle was clearly trying to assist the court but she had no involvement in the Claimant’s case (and indeed confirmed that there were individuals who dealt with his case still employed by the Defendant who had not been called to give evidence, although she could not say whether any person who dealt with his case during the period he was on the FRS was available).

I agree with Mr Henderson that these cases do not assist the Claimant. The criticism in these cases relates to evidence that could not be tested. I have heard evidence from Ms Buckle which, as I have said, I accept (see para 94 above). Ms Buckle accepted that less was done by the Defendant during these three months because the Claimant was on the FRS during which time the Defendant chased and encouraged the Claimant to obtain the necessary information, in accordance with the Defendant’s guidance. I am entirely satisfied, having heard Ms Buckle’s evidence which was subjected to proper cross-examination by Mr Ó Ceallaigh, that she was in a position from her experience with such cases to give evidence that before the KRG could be approached for their assistance in a case where CST were of the view that there was insufficient information to satisfy KRG as to an individual’s identity CST needed to show that they had done all that they could to obtain the necessary information (see para 83-84 above).

By February 2013, albeit that the Claimant had only been on the FRS for three months, it had become clear to the Defendant that he was not being as co-operative as was required and so the Defendant took him off the scheme and pursued an approach that led to his successful removal.

In my view there was no lack of diligence on the Defendant’s behalf at any time during the Claimant’s detention.

The Claimant was deported after eight months and ten days in detention. I consider that to be a reasonable period in all the circumstances.

In reaching this conclusion I have had regard to the finding I have made that the Claimant’s detention was lawful from the outset and to the actions taken by the Defendant during the detention period to obtain an ETD to which I have referred. I am satisfied that throughout his detention it was reasonable for the Defendant to assess the risks of the Claimant absconding and re-offending as it did. In summary the factors underlying the risks were the Claimant’s past criminal convictions, his behaviour in detention and his lack of ties in the community. I accept that when in detention the Claimant had an apparent desire to return to Iraq, but if released the Defendant was plainly, in my view, on the evidence entitled to assess the risk of him absconding and re-offending as high.

Finally I am satisfied that there was a realistic prospect of the Claimant’s removal throughout his time in detention. The deportation order was made promptly on 5 September 2012 after he entered detention on 27 August 2012. Deportations and removals to Iraq were taking place at this time. On 29 September 2012 the Claimant indicated a desire to take part in the voluntary return scheme and applied for the FRS on 3 October 2012. Although I have found that he did not fully co-operate with the FRS he did appear to be willing during this period to engage with the Iraqi Embassy (see paras 38 and 46-47 above) and that being so there remained, in my view, a realistic prospect of removal. When on 10 February 2013 it was decided that the Claimant should be taken out of the scheme an alternative route to removal was explored, and on 25 March 2013 the KRG confirmed the Claimant could be returned to Iraq. Thereafter the Claimant’s removal was imminent. It was initially set for 13 April 2013 and, when this did not prove possible, was re-arranged for 7 May 2013 at which time the Claimant was successfully returned to Iraq.

I consider Hardial Singh principles 2, 3 and 4 to have been satisfied.

For the reasons I have given this claim fails.