Miyanji v Secretary of State for the Home Department

The Claimant claims damages for unlawful detention.

The Claimant was detained under immigration powers for a period of 4½ years between 6 May 2009 and 19 December 2013 when he was released on conditional bail. He contends that his detention was in breach of Hardial Singh principles, in breach of the Defendant’s policy, in particular the policy contained in Chapter 55.10 of the Defendant’s Enforcement Instructions and Guidance (“EIG”), and that his detention was, at least latterly, for an improper purpose.

The Claimant was born in Nairobi, Kenya in 1962.

He arrived in the UK on 23 July 1993 using what appeared to be a genuine Kenyan passport. He sought leave to enter as a visitor which was refused but he was granted temporary admission on compassionate grounds because his mother was ill.

On 12 April 1994 the Claimant claimed asylum. On 10 February 2000 the Claimant’s asylum claim was refused but he was granted exceptional leave to remain (“ELR”) until 10 February 2004. He has had no further grant of leave to remain since his ELR expired on 10 February 2004.

On 7 February 2003, the Claimant was convicted at Kingston Crown Court of six counts of rape (of his sister-in-law) and sentenced on 7 March 2003 to five years’ imprisonment. The sentencing Judge described the offence as “a very serious matter where the victim’s life was affected, probably permanently. For the period of 18 months, when you said you had sexual intercourse with her, between 40 and 50 times, it was clear that she was placed in a position of great fear…” However, that sentence of five years did not reflect the gravity of the offence. The Attorney General referred the sentence to the Court of Criminal Appeal on the basis that it was unduly lenient and the Court of Appeal substituted a sentence of 10 years on 3 October 2003: Attorney-General's Reference (No 26 of 2003) [2003] EWCA Crim 2736. In increasing the Claimant’s sentence, the Court of Appeal noted that, notwithstanding the Claimant’s previous good character, “this was a campaign of rape against the same victim”, and that there were several aggravating features including the frailty of the victim, the planning of the offences (the offences being committed on days when the rest of the family were away) and the fact that some of the offences were committed in the presence of the victim’s young child. The Claimant was also required to comply with the provisions of section 2 of the Sex Offenders Act 1997 for an indefinite period. On 21 April 2004 the Court of Appeal dismissed the Claimant’s appeal against conviction. It is a feature of this case that the Claimant has consistently refused to accept his guilt.

The Defendant made a Deportation Order on 17 April 2007. The Claimant appealed but his appeal was dismissed on 19 December 2007 and he became appeal rights exhausted on 8 January 2008. A further Deportation Order was made on 18 March 2008 and served on 25 March 2008.

The custodial part of the Claimant’s sentence of imprisonment expired on 6 May 2009 whereupon the Claimant was detained under immigration powers pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”).

The Claimant submitted further representations at periodic intervals during his detention under immigration powers but the Defendant refused to revoke the Deportation Order and refused and certified his various asylum and human rights claims.

It is common ground that the Claimant refused to cooperate with the removal process and the Defendant was thereby unable to obtain an Emergency Travel Document (“ETD”) from the Kenyan authorities in order to effect his removal. The need for an ETD was the only barrier to removal. The Kenyan authorities would not consider issuing an ETD without interviewing the Claimant. The Defendant made arrangements on several occasions for the Claimant to attend at the Kenyan High Commission (“KHC”) to be interviewed but the Claimant repeatedly refused to attend.

The Claimant’s detention was the subject of regular reviews and the view taken was that he presented a high risk of absconding, reoffending and serious harm to the public if he were to be released.

The Claimant remained in detention from 6 May 2009 until 19 December 2013, a period of approximately 4 years and 7 months. He was granted bail on 17 December 2013 and released on 19 December 2013.

The Claimant says that his detention was unlawful, in whole or in part, for the following reasons:

The Claimant’s pleaded case also relied on Articles 5 and 8 of the ECHR. However, the ECHR points were not pursued as separate grounds during submissions.

In response, the Defendant says that there was at all times the power to detain the Claimant and that the power was properly exercised in compliance with the Hardial Singh principles. It is said that the Claimant presented an obvious and high risk of absconding, borne out by his refusal to accept his guilt, his poor immigration history and his refusal to cooperate with the removal process. He had committed a sexual crime of the most serious kind which had warranted a very long custodial sentence. He had steadfastly refused to acknowledge his guilt and the risk of serious harm to the public should he have committed an offence of a similar kind was such that his detention was justified. In any event, says the Defendant, his continued and prolonged detention was, to use the language of Toulson LJ in R.(A) v. SSHD [2007] EWCA Civ 804 at [54] very much “a product of his own making” as a result of his repeated failures to attend scheduled interviews at the KHC for the purposes of obtaining the ETD. There remained, up to the point of the Claimant’s release, a “sufficient prospect” of removal to warrant continued detention, having regard to all the other circumstances of the case. The Defendant denies that there was any breach of her policy.

There is no real dispute between the parties as to the legal principles applicable in respect of detention pending removal.

The burden is on the Defendant to show that at all times, she had a lawful justification for detaining the Claimant: Lumba v Secretary of State for the Home Department [2012] 1 AC 245 per Lord Dyson at para 65:

“All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so…”

There is a power to detain pursuant to paragraph 2(3) of Schedule 3 to the 1971 Act which provides:

“Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom…”

The exercise of that power is not unfettered and must comply with the principles set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 (“the Hardial Singh principles”), which were approved and summarised by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at para 46 and approved again by Lord Dyson in Lumba v Secretary of State for the Home Department [2012] 1 AC 245 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 that 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.”

I shall refer to these principles as Hardial Singh (i), (ii), (iii) and (iv) respectively. Each of these principles has been the subject of further consideration by the Courts:

The power to detain is a broad one. In R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 AC 207 at [32] Lord Brown of Eaton-under-Heywood stated that detention will be authorised “so long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this”.

In Lumba, Lord Dyson considered the circumstances relevant to the question of how long it is reasonable to detain:

“104 How long is a reasonable period? At para 48 of my judgment in I's case, I 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’.”

And at [121] Lord Dyson said this:

“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.”

The question of what is a reasonable period thus depends on all the circumstances. However, bearing in mind that the purpose of detention is to effect removal from the country, the risks of absconding and reoffending assume particular importance.

The reasonableness of any period of detention depends on the particular facts of each case. There is no defined period of time which is considered long or short. In Fardous v. SSHD [2015] EWCA Civ 931 Lord Thomas LCJ said this:

“(d)

No tariffs or yardsticks

37.

The Secretary of State acting through his officials has to determine whether the period of detention is reasonable when deciding whether or not to continue the detention, subject to the right of any detainee to apply for bail. It is a judgment which has to be made on the evidence and in the circumstances as appear to the officials in each case.

38

There is no period of time which is considered long or short. There is no fixed period where particular factors may require special reasons to make continued detention reasonable.

…

41 .Each deprivation of liberty pending deportation requires proper scrutiny of all the facts by the Secretary of State in accordance with the Hardial Singh principles. Those principles are the sole guidelines.

(f)

The risk of absconding

44 It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case. This has been made clear in a number of cases: see for example paragraph 54 of the judgment of Keene LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and the judgment of Lord Dyson in Lumba at paragraph 121.

45.

Although the risk of absconding will therefore always be of paramount importance, a very careful assessment of that risk must be made in each case, as the magnitude of that risk will vary according to the circumstances. It may be very great, for example, where the person has, as in this case, a clear track record of dishonesty and a knowledge of how to “work” the controls imposed to regulate immigration in the European Union. Another example where the risk may be high is where the person refuses voluntary repatriation that is immediately available to him. It is important to emphasise that the risk of absconding is distinct from the risk of committing further offences and not dependent on that further risk. The risk of re-offending requires its own distinct assessment.

46.

However, as is accepted on behalf of the Secretary of State, the risk of absconding cannot justify detention of any length, as that would sanction indefinite detention. It is therefore not a factor that invariably “trumps” other factors, particularly the length of detention. It is nonetheless a factor that can, depending on the circumstances, be a factor of the highest or paramount importance that may justify a very long period of detention.”

The risk of re-offending and the risk of harm that might result from such offending is also of critical importance when determining the reasonableness of any period of detention. As Toulson LJ said in R (A) v. SSHD [2007] EWCA Civ 804 at [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. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”

In short, whilst there are no trump cards, the risks of absconding and/or re-offending are generally of paramount importance.

The refusal on the part of a person subject to a deportation order to cooperate with the process and thereby delay his own removal is a relevant factor. The question of non-cooperation was considered by the Court of Appeal in the recent case of R (on the application of DZ(Eritrea)) v Secretary of State for the Home Department[2017] EWCA Civ 14 in which Gloster LJ said this at [37] and [39]:

“… the appellant's non-cooperation throughout the entire period of his detention was clearly relevant to the judge's conclusion that the appellant had not been unlawfully detained, since it was the only reason that the appellant's detention had been prolonged. As Miss Anderson submitted, the appellant could at any time have brought his detention to an end bycomplying with the deportation order and leaving the UK, as indeed he had a statutory obligation to do.

It is clear from the authorities dealing with the application of the Hardial Singh principles that a distinction has to be drawn between genuine resistance to removal based on a subjective well-founded fear of persecution and deliberate obstruction such as the appellant engaged in in the present case. I accept Miss Anderson's submission that those principles cannot be used to facilitate an individual defeating the statutory purpose and forcing his release from detention, on the basis of deliberate obstruction of the lawful deportation process. Necessarily, what amounts to a reasonable period for the respondent to implement the removal process will be critically dependent on the extent to which the FNP obstructs or cooperates with the deportation process. In the present case the judge was, in my view, clearly entitled in evaluating what was a reasonable period, to conclude that significant weight should be given to the factor of the appellant's non-cooperation, notwithstanding the lengthy period of his detention.”

To similar effect, in relation to the refusal of voluntary repatriation, Toulson LJ said this in R (A) v. SSHD [2007] EWCA Civ 804 at [54]:

“… the loss of liberty involved in the individual’s continued detention is a product of his own making.”

Finally, on the question of non-cooperation, I was also referred to Simukonda v. SSHD [2017] EWHC 1012 (QB) where Jonathan Swift QC sitting as a Deputy High Court Judge said this at [21]:

“… lack of cooperation on the part of the detained person is neither a trump card for him, nor a trump card for the Secretary of State. The fact that the person detained is a non-cooperative detainee does not dilute or diminish the obligation to pursue removal with appropriate diligence. Yet in such a case, the Secretary of State can be expected to seek to exhaust every option available to her, and in principle is to be afforded the opportunity to do that. In such a case, it is quite possible that detention over an extended period will be consistent with Hardial Singh principles.”

It is not necessary for the Secretary of State to identify a specific date by which removal could reasonably be expected to be effected. There must be a sufficient prospect of removal within a reasonable time to justify the detention, having regard to all the circumstances: R(A) v. SSHD [2007] EWCA Civ 804 at [45]. As stated by Richards LJ in R(MH) v. Secretary of State for the Home Department [2010] EWCA Civ 1112 at [64]:

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

The Defendant must act with reasonable diligence and expedition to effect removal. However, it is important to distinguish between administrative failings and unreasonableness amounting to illegality: see e.g. JS (Sudan) [2013] EWCA Civ 1378 at [58]-[66].

Before turning to the facts in more detail, I refer to one further principle of general application in considering whether the detention was lawful. That is that the Court’s approach is an objective one based on the material that was before the Defendant at the time and is not an occasion for the exercise of hindsight. As stated by Lord Thomas LCJ in Fardous v. SSHD [2015] EWCA Civ 931:

“42.

In determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision of the court is necessarily ex post facto, the court does not take into account matters that subsequently occurred. As Sales J explained in R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin), at paragraph 105:

“In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.”

His decision was upheld by this court: [2010] EWCA Civ 1112.

43.

It is this objective approach of the court which reviews the evidence available at the time that removes any question that the period of detention can be viewed as arbitrary in terms of Article 5 of the European Convention on Human Rights. ”

In this section I shall consider in more detail, the detention period, the regular reviews that were undertaken by the Defendant during that period and the other steps taken by her to effect removal. In doing so, I remind myself that it is not just the fact that reviews have taken place that is important but also the quality of those reviews: see R (Kambazdi) v Secretary of State for the Home Department [2011] 1 WLR 1299 per Lord Kerr at [86].

I heard evidence from two witnesses for the Defendant, Mr Austin Greenwood, an operations manager within the Defendant’s Criminal Casework team based in Leeds, and Mr Mike Hegarty, Senior Executive Officer within the investigations team within Criminal Casework based in Croydon. Both were involved in the Claimant’s case, Mr Greenwood from fairly early on in the Claimant’s detention (though not at the outset), and Mr Hegarty from the latter part of 2012. There were 61 detention reviews between 29 May 2009 and 25 November 2013. Mr Greenwood authorised the Claimant’s continued detention on 17 occasions and recommended his detention to a more senior officer on a further 11 occasions. Other officers authorised continued detention on the remaining 33 occasions.

Mr Carter, for the Claimant, attacks the adequacy of the Defendant’s evidence in this regard on the basis that not all of the relevant officers have been produced to explain their decisions and recommendations. He says that even if it was not realistic for the Defendant to call every officer involved, she should at least have called the Strategic Director to give evidence as that is where “the buck stops” when it comes to authorising detention. I consider these criticisms of the Defendant’s evidence to be misconceived for several reasons:

It follows that I reject the contention that the Defendant’s evidence was deficient just because only those two witnesses were called. I similarly reject the further submission made that the Defendant ought to have adduced evidence of the policy training provided to reviewing officers. There was no pleaded issue as to the adequacy of training. Moreover, whether or not the reviews complied with policy at the time can be assessed by reference to what is set out in the written records.

On 13 June 2008, whilst the Claimant was still serving his sentence, a request was made for an ETD interview. The Claimant refused to complete the interview. Thus the pattern of non-compliance commenced even before the period of immigration detention.

On 21 April 2009, the Claimant refused to have his photographs taken for the purposes of obtaining the ETD.

The Minute of the Decision to Detain is dated 28 April 2009. It was noted that there was no evidence of previous absconding or failure to comply with conditions of temporary admission or bail. However, it was also noted that there was a risk of harm if he were to be released. Reference was made to the judgment at the earlier deportation hearing on 19 December 2007 that in light of the seriousness of the offence and the continued denial of guilt, the risk of reoffending and the risk of harm to the original victim and to others could not be excluded. It was considered that the Claimant would not comply with any conditions of release. Detention was thus authorised and this commenced on 6 May 2009.

The first detention review took place on 29 May 2009. It was noted by the reviewer, Mr Roger Scott, that there was a risk of harm, that the Claimant had been assessed by reference to a Harm Matrix as presenting a high risk of harm, that there was a risk of reoffending given the failure to accept guilt, the only barrier to removal was the need to obtain the ETD, that the Claimant was not cooperating in the process, and that although the Claimant has family ties in the UK those were not close enough to ensure that he would comply with any conditions of release. Accordingly continued detention was proposed and detention was authorised on 2 June 2009 by a Mr Phil Baker.

Mr Carter took a further evidential point in that Mr Baker had signed his authorisation whereas Mr Scott had not. However, I do not see any particular significance in the absence of a signature in circumstances where it is clear that Mr Scott is the author of the report and that he forwarded it on that basis to a more senior officer for approval.

Mr Carter submits that all reasonable alternatives to detention had not been considered, as required by the EIG, and highlights the absence of any express reference to electronic tagging. However, it seems to me that an assessment that the Claimant would not comply with “any conditions of release” is sufficient to indicate that tagging had been considered since that is one of the conditions of release that may be imposed. In any case, according to the EIG, rigorous contact management (which includes tagging) is generally to be considered for those assessed as presenting a low or medium risk of harm. The Claimant was assessed as a high risk.

On 10 June 2009, an ETD application was sent to the KHC. A monthly progress report from July 2009 shows that the Claimant had not provided clear evidence of nationality.

On 6 October 2009, a face-to-face interview with the KHC was arranged for 29 October 2009, later changed to 4 November 2009. The Claimant refused to attend the face-to-face interview with the KHC on 4 November 2009. Some criticism was made of the delay in arranging that interview. However, it is apparent from the records that, following the sending of the ETD application in June 2009, updates were sought from the Returns Group Documentation Unit in July and August 2009, and faxes sent to the KHC. These matters all suggest that the Defendant was acting at that time with reasonable diligence and expedition to progress matters. It is also relevant to note that some delay was introduced by the Claimant making apparently unmeritorious fresh applications for asylum. A rule 35 report was submitted in September 2009 following the Claimant’s allegation that he had been tortured by the Kenyan Police in 1992, although no scars were observed.

On 17 November 2009, the Claimant made a claim for asylum which was subsequently rejected. Additional grounds in respect of that claim were served on 21 December 2009. The records show that a further interview with the KHC was put on hold at this time pending his further asylum claim.

In the detention review of 18 June 2010, continued detention was authorised and the Director, Mr Nancekivell-Smith, said that it would be helpful if future detention reviews could also cover any MAPPA concerns. MAPPA is an indicator of risk of harm. The Claimant had been assessed at both level 2 (that being the intermediate level) and level 1 (which is the lower level). It was suggested, if I understand Mr Carter correctly, that Mr Nancekivell-Smith’s comment about MAPPA was an attempt at ‘back-covering’ given the absence of references to MAPPA previously. I do not consider that to be the case at all. This seems to me to be no more than a reviewer indicating a further source of information that could assist in future. Mr Greenwood’s evidence is that the MAPPA rating is more relevant for the period after the license-period of a sentence expires. If that is the case, then the information as to MAPPA levels would be of limited value at this stage in any event.

On 5 July 2010, a further interview with the KHC was scheduled for 22 July 2010. Also in this month the Defendant wrote to the Claimant’s sisters and brother for further information to assist with establishing his nationality.

On 22 July 2010, the Claimant indicated that he would not attend the interview at the KHC due to having a “true fear” of Kenyan authorities.

On 28 October 2010, photographs of the Claimant were again requested whilst on 11 Nov 2010 his fingerprints were provided to the KHC in support of the ETD application. A factual report was also submitted at around this time. By 11 Jan 2011, the KHC had the fingerprints and photos. The Foreign and Commonwealth Office (“FCO”) indicated that it would chase a feedback meeting with the KHC.

The detention review on 23 December 2010 (the 22^nd such review) notes that “it is evident that we are taking longer that we would hope to progress his removal though the reasons are very much within the control of Mr Miyanji.”. This is the first clear indication of concern expressed as to the rate of progress.

On 14 February 2011, a further interview with the KHC was arranged for March 2011. However, on 3 March 2011, the Claimant refused to attend. Also in that month a letter was sent to the Met Police asking for records of the Claimant’s nationality.

In April 2011, further contact was made with the KHC seeking a response. On 5 May 2011, the FCO indicated that it will meet with the Kenyan Immigration Service regarding confirmation of the Claimant’s identity.

On 13 July 2011 the Defendant wrote to the Claimant confirming that his further submissions in support of asylum were not considered to be a fresh claim. Needless to say, these unsuccessful, and apparently groundless applications in respect of asylum, introduced further delay. Also in July 2011 there was an attempt to obtain information from the Danish Immigration authorities as it appears that the Claimant spent some time in Denmark. In support of that inquiry, the Claimant’s fingerprints were provided to the Danish authorities on 13 Aug 2011. However, on 26 August 2011 it was confirmed that the Claimant was not known to the Danes.

In September 2011 a further avenue of inquiry was commenced with a request to the DVLA for records provided by the Claimant in support of his application for a Driving Licence in 1999. However, nothing was found. (It appears from the chronology supplied that this was the second approach to the DVLA the first also having been unsuccessful.)

In October 2011, the Country Return Service confirmed that the Kenyans will still not consider the ETD application without an interview. A further interview was then booked for 8 December 2011. By this stage consideration was being given to initiating a prosecution under s. 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 in respect of his failure to comply. In the detention review of 20 October 2011, the reviewing officer stated that “we should persist in the knowledge that this individual will go out of his way to hinder us”.

On 18 November 2011, the Claimant refused to get into the prison van for a transfer to HMP Doncaster. The Claimant’s non-compliance thus extended beyond the process for obtaining the ETD.

On 8 December 2011, the Claimant refused, yet again, to attend the interview with the KHC. This was his fourth successive refusal.

On 31 January 2012, the Claimant was interviewed by an Immigration officer in relation to the proposed s.35 prosecution. The Claimant suggested that he had fears about returning to Kenya. These suggestions developed into a further asylum claim which was dismissed on 14 February 2012.

On 2 April 2012, it was agreed that the s.35 prosecution would be pursued. However, no particular steps to progress this appear to have been taken.

At around this point in 2012 the rate of activity on the Defendant’s part appears to decrease somewhat. On 15 August 2012, the 44^th detention review states as follows:

“It is acknowledged that despite Mr Miyanji’s non-compliance a release referral may be needed shortly due to the length of detention, however it is considered that the risks of Mr Miyanji absconding and/or re-offending if released from detention outweigh the presumption of liberty at the present time and therefore detention should be maintained pending further guidance from CSIT.” In authorising continued detention, Mr Greenwood expressed concern about the lack of progress and stated that, “if no meaningful progress has been made by the next review, please put the case forward for release consideration.” By this stage, the Claimant had been in detention for over 3 years.

The only progress that appears to have been made by the next detention review is that further interviews were scheduled with CSIT on 21 September 2012 (in relation to the s.35 prosecution) and with the KHC on 27 September 2012. The 45^th detention review on 10 September 2012 again notes that, “despite Mr Miyanji’s non-compliance a release referral may be needed shortly due to the length of detention, however … detention should be maintained pending [the interviews]”. In authorising continued detention, Mr Greenwood said on 11 September 2012, “I had recommended that we consider releasing Mr Miyanji in the previous review, but continued detention is key to the progression of the s.35 prosecution.”

The CSIT interview was held on 21 September 2012. Mr Hegarty was in attendance as an observer. At this interview, the Claimant was asked whether he liked residing in prison; he responded that he did and that, “It’s better than going back [to Kenya]”. All warnings of prosecution appeared to have no effect on the Claimant. Mr Hegarty stated that the impression he got was that the Claimant was determined not to be deported.

On 27 September 2012, the Claimant, consistent with his expressed determination not to be deported, refused to attend the interview with the KHC. This was his fifth refusal.

The 46^th detention review on 5 October 2012 notes that the s.35 prosecution “is to be restarted with the assistance of CSIT who are due to see Mr Miyanji and issue a further warning on 5 November 2012.” The utility of such further warning in the prevailing circumstances, particularly in light of the statements made by the Claimant at the previous interview, is far from clear. In authorising the detention on 9 October 2012, Mr Greenwood stated that he is “content that we are now making progress towards prosecuting Mr Miyanji for his lack of compliance with the ETD process and detention is essential to this process.”

The next detention review on 1 November 2012 confirmed that no further action had been taken in respect of the s.35 prosecution since January 2012 and that a successful prosecution was very unlikely unless the process was restarted. However, in authorising the detention, the Assistant Director, Mr Jonathan Devereux, stated that he was “confident that removal can be achieved within [a reasonable] timeframe and that given the very real risk of absconding and of reoffending that this FNO presents that the presumption of liberty is outweighed”. It seems to me, given the information that was available to Mr Devereux at that time, that this confidence was misplaced. There had not been any progress on the s.35 prosecution for almost a year and there was no information at that stage to suggest that that position was likely to change within a reasonable period or that, even if restarted, the prosecution would make any difference in terms of the Claimant’s non-compliance. Neither Mr Greenwood nor Mr Hegarty were able to give any information as to the likely timescale for such a prosecution and had not been directly involved in one before. Unsurprisingly, Mr Greenwood was not able to say whether he had received any information about the duration of a prosecution at the time. What is clear is that there is nothing in the records to suggest that a renewed attempt at prosecuting would progress any faster than the previous one.

By a letter dated 12 November 2012 the Claimant’s solicitor denied that he was a Kenyan citizen. This was an extraordinary claim to make given that the Claimant had earlier confirmed that he was born in Kenya and had been the holder of Kenyan passport. It was indicative of his continued obstructiveness.

It was suggested by Mr Hansen for the Defendant that by early 2013, there was some indication that, perhaps as a result of change of personnel at the KHC, it would accept an ETD application without an interview. However, certainly as at January 2013, there was nothing definitive to that effect in the documents.

By the time of the 51^st Detention review on 19 February 2013, the caseworker, Ms Leadbeater, stated that, “It is acknowledged that Mr Miyanji poses a risk of absconding and/or reoffending if released from detention, however, it is considered that given the length of continued detention this is now outweighed by the presumption of liberty.” Mr Greenwood agreed that a release referral would be made to the Strategic Director. However, release was refused on 21 February 2013. The basis for the refusal is not set out in the review. I was provided with a chronology prepared by the Defendant in which it is suggested that the refusal was “on basis (sic) that police Operation Nexus/Terminus might assist in identifying M”. However, it is not at all apparent why that police operation should have been considered any more likely to produce results than previous inquiries.

In an exchange of emails dated 19 February 2013, Mr Hegarty acknowledged that the threat of a custodial sentence seemed to be of no concern to the Claimant.

Following the general election in Kenya in early 2013, there was increased optimism that progress would be made with the Kenyan authorities. In an exchange of emails on 6 March 2013, Mr Hegarty said as follows:

“… we have a guilt (sic) edged opportunity to remove [redacted] and also at a push Mr Miyanji, but this will require the Kenyans to agree at their end that the subject(s) are Kenyan and will be accepted on arrival.” (My emphasis).

Mr Hegarty denied that by using the words “at a push” he meant that Mr Miyanji’s chances were poorer than the other individual whose name has been redacted. I have to say that, in my judgment, the only reason to use those words would be to mean precisely that. I do not consider that Mr Hegarty is in any way trying to mislead as no doubt it is very difficult to recall, over four years later, precisely why a certain form of words was chosen. Viewing the matter objectively, however, it seems to me that as at 6 March 2013, Mr Hegarty was not as confident about the Claimant’s prospects as the other individual although that is not to say that there was not at least some reasonable prospect of removal at that stage. The remainder of the email suggests that the FCO were making some progress with the Kenyan authorities and that may have been the reason for Mr Hegarty’s guarded optimism.

In the next detention review on 18 March 2013, Ms Leadbeater stated that “CCD investigations are once again involved in liaising with the Kenyan authorities via the FCO, and it is hoped that this will lead to some progress with the ETD.” The basis of that hope may have been connected with the change of administration in Kenya. At any rate, on the basis of that hope, Mr Greenwood authorised continued detention stating that it was “feasible that removal could take place within a reasonable period.”

By 23 April 2013, the FCO invited the Defendant to resubmit the request for an ETD with full documentation. This would appear to be an indication from the FCO that some progress was being made with the KHC.

On 20 May 2013, in accordance with the FCO’s request, a factual report was submitted to the KHC. This contained the same information as the factual report sent in 2010. The purpose of the report was to override the need for cooperation on the Claimant’s part.

On 20 September 2013, the FCO indicated that there was a new Immigration Attaché at the KHC who had said he should be able to issue the ETD without the need for an interview. It is fair to say that as at that stage, there was every expectation that the ETD would be issued within a reasonable period.

The ETD had not been issued by December 2013 when the FCO stated that the next step would be a personal visit by country manager. This proposed visit was overtaken by events in that bail was granted on 17 December 2013.

It has, I am afraid, been necessary to set out the steps taken during detention in some detail in order to gain an understanding of the information that was available to the Defendant at each stage her officers authorised continued detention.

Mr Carter’s skeleton argument describes the Claimant’s primary position in relation to the Hardial Singh Ground as being that detention became unlawful after one year. However, he also attacked the quality of the reviews undertaken by the Defendant from the outset of the detention. In particular, it was said that:

Mr Carter submits that, taken together, these matters establish that the Defendant has not discharged the burden of showing that the reviews were of the requisite quality as required by the decision in R (Kambazdi) v Secretary of State for the Home Department. I reject that submission. Each of the points (a) to (d) above has been considered already under section E above. To reiterate:

For these reasons, there is, in my judgment, nothing in the Claimant’s challenge as far as the quality of the reviews is concerned.

I turn therefore to the three main grounds of challenge and I start with the Hardial Singh Ground.

Two factors of “paramount importance” in analysing the reasonableness of the period of detention are the risk of absconding and the risk of reoffending. Dealing first with the risk of absconding, Mr Carter accepts that this is relevant but reminds me that it is not a “trump card”, and he questions: (a) whether there was any evidence of a risk of absconding beyond what he describes as the “baseline inference” of such risk arising from the seriousness of the criminal conviction itself; and (b) whether that risk was in fact properly considered in the course of the detention reviews.

It is highly relevant to note that the background to the Claimant’s detention is that he was convicted of a serious sexual offence for which he received a sentence of 10 years’ imprisonment. In my judgment, a high risk of absconding can properly be inferred from the seriousness of the offence itself and from the following factors which were present throughout the Claimant’s detention:

In my judgment, this is not a case where the Defendant relied upon the fact of conviction alone to infer that there was risk of absconding. On the facts of this case, there were several matters which supported the Defendant’s conclusion that there was such a risk. The fact that the original Minute of Detention stated that there was no evidence of absconding previously does not undermine that conclusion; the absence of prior instances of absconding is not determinative of the question of whether there is a present risk of absconding.

I do not accept Mr Carter’s contention that the risk of absconding was not properly considered in the reviews. I was taken to an approval of detention by Mr Greenwood on 21 August 2009 where he expressly mentioned the risk of harm but not the risk of absconding. However, that approval was of a proposal based on the review prepared by another officer which does expressly mention the risk of absconding. Mr Greenwood said in evidence that he relied on the review in reaching his approval decision and that this was not a “rubber stamping” exercise. I accept that evidence. Thus, the failure by Mr Greenwood expressly to mention the risk of absconding does not mean, in this case, that that risk was not taken into account. In my judgment, having looked closely at the reviews, it is clear that the risk of absconding was consistently at the forefront of the Defendant’s mind in reviewing the detention.

As for the risk of reoffending, whilst this is not a case where the Claimant had a history of repeat offending – indeed this was his only conviction – its seriousness and his refusal to accept his guilt are matters from which the risk of reoffending can be inferred. Such a conviction, according to the EIG, is “strongly indicative of the greatest risk of harm to the public and a high risk of offending”. Furthermore, as stated by the Immigration Judge in the decision of 19 December 2007:

“We note that he continues to deny his guilt. The Pre-Sentence report was limited in its recommendations because of that fact. We cannot exclude the risk of re-offending given the failure of the appellant to acknowledge his guilt. The gravity of the offences is self-evidence and risk to the victim and others cannot be excluded.”

The Defendant placed some reliance on a risk of harm matrix which suggested that the risk of harm was high. Mr Carter dismisses this matrix as a somewhat hollow document given that it only takes into account the self-evident facts that the Claimant was a foreign national convicted of a sexual offence. However, self-evident though they may be, the assessment that the risk of harm was high cannot be said to be incorrect or unreliable.

I bear in mind that whilst the failure to cooperate is an important factor which could support detention over a considerable period of time, it cannot justify indefinite detention:

As Toulson LJ said, there must be a “sufficient prospect” of removal to warrant continued detention having regard to all the circumstances of the case … What is sufficient will necessarily depend on the weight of the other facts; it is a question of balance in each case: See R (MH) v SSHD at [64].

The question here is whether that balance, which undoubtedly supported detention at the outset of the detention, tipped in favour of release at any point in the subsequent 4½ years so as to render continued detention unlawful from that point.

In my judgment, it is clear that in the period from the commencement of the detention until late 2012, there is no question that the balance of the various factors was such that continued detention was lawful:

The evidence was that the prospect of a s.35 prosecution had, in other cases, had the effect of prompting detainees to cooperate. The Defendant’s belief that that might be the result here was justified when the s.35 process began to be considered as an option in late 2011 and in early 2012 when it was decided to proceed with that prosecution. However, by August 2012, no progress had been made with the prosecution and the length of detention was causing officers to consider referring him for release. The officers were clearly concerned that the balance of factors may now be starting to tip the other way. In my judgment, by 1 November 2012, several things were clear:

Of course, the continued risk of absconding, reoffending and serious harm were still present, and the Claimant’s deliberate obstructiveness in the process is a matter to be given significant weight. However, in my judgment, having regard to all the factors known to the Defendant at that time, it could not be said that as at 1 November 2012 there was a sufficient prospect of removal being effected within a reasonable period. Taking account of the length of the detention at that stage (almost 3½ years) and the lack of meaningful progress being made, the balance in this case tipped in favour of release from that point. Accordingly, it is my judgment that the Claimant’s detention after 1 November 2012 ceased to be lawful in that it was in breach of Hardial Singh (ii) and/or (iii).

The officers in the case came to the conclusion that continued detention was not justified on 19 February 2013 and they made a referral for release. However, release was refused. As I have said, the reason for that refusal is not entirely clear and there does not appear to be any evidence of any concrete new information that would have altered the prospect of removal.

The position therefore remained somewhat static from 1 November 2012 until March 2013 when the change of government in Kenya apparently raised the prospect of a more accommodating attitude on the part of the Kenyan authorities. As at 6 March 2013, Mr Hegarty referred to a “guilt (sic) edged opportunity to remove [redacted] and also at a push Mr Miyanji”. As I have said, I accept that as at that date, Mr Hegarty did think there was some prospect of removal, albeit less than the other individual being considered. In the next two reviews on 18 March 2013, and 23 April 2013, there is evidence that the Defendant was, to a significant extent, relying upon information from the FCO that progress was being made with the KHC and that a resubmission of documentation could produce a result. Considerable weight is to be afforded to such evidence:

“79 In addressing the question on ground (1), the court has to ask whether there was “some prospect” of the Claimant being removed within a reasonable period: see R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207 , [32]-[33] per Lord Brown of Eaton-under-Heywood, referring to the similar power of detention in paragraph 16 of Schedule 2 to the 1971 Act. It is for the court to assess whether the period in contemplation was a reasonable one in all the circumstances. The court is not confined to applying Wednesbury principles to assess whether the Secretary of State himself rationally held the view that the period in contemplation was reasonable. But at the same time, in a case such as this, where a judgment about the availability of removal depended in a significant way upon an assessment of how a foreign government would react, the court will be slow to second-guess the assessment in that regard which is made by the executive. This reflects the fact that the executive is much better placed than the court to assess the likely reactions of foreign governments, both because its representatives are directly involved in the relevant negotiations with those governments and because they are themselves, or have access to assessments by, skilled diplomats and officials with knowledge and experience of foreign affairs. Per Sales J in R(MH) v SSHD [2009] EWHC 2506 at [79] (Underlined passage approved in DZ (Eritrea) v SSHD [2017] EWCA Civ 14 at [28]).”

In my judgment, by 6 March 2013, there was, on the basis of the information from the FCO, once again a sufficient prospect of removal within a reasonable period. The risks of absconding, reoffending and serious harm were still present and those factors, taken together with the prospect of removal within a reasonable period meant that, on balance, continued detention was compliant with Hardial Singh principles. This was notwithstanding the fact that as at that date, detention was approaching 4 years.

That remained the position in my judgment throughout May 2013, when the further factual report was submitted to the KHC in accordance with the FCO’s request, and during the subsequent months until the Claimant’s release on bail. Mr Carter submits that even though there might have been grounds for optimism after the change of government in Kenya in March 2013, there was delay and a lack of diligence thereafter. I accept that matters did not progress as quickly as one would have hoped after March 2013, but the evidence (largely unchallenged) as to the steps taken by the Defendant in this period shows, in my judgment, that there was reasonable diligence and expedition. As Mr Greenwood makes clear in his statement, the Kenyan authorities led the Defendant to believe “that an ETD would shortly be issued”. Furthermore, the Kenyan authorities continued to work with the Defendant and (as late as 9 December 2013) had even agreed to interview the Claimant in prison, thereby increasing the chance of cooperation on his part. All of these matters led Mr Greenwood to believe that there was “a decent chance” of getting an ETD in that period.

In relation to the Hardial Singh Ground, I therefore find that the detention was compliant with the Hardial Singh principles and lawful from the commencement of the Claimant’s detention until 1 November 2012; unlawful from 1 November 2012 until 6 March 2013; and lawful thereafter until his release on bail.

It is convenient to deal next with the Improper Purpose Ground. That is because, it is, essentially, a further ground based on the Hardial Singh principles and in particular, Hardial Singh (i). The basis of the allegation is the detention review undertaken on 11 September 2012, where Mr Greenwood said that “continued detention is key to the progression of the s.35 prosecution.” (A similar comment was made at the 9 October 2012 review). Mr Carter says that this raises the question whether the detention was still for the purpose of removal or whether it was really or mainly in order to prosecute the Claimant. Mr Greenwood denied that he was authorising detention merely in order to prosecute and said that he saw the s.35 prosecution as a means of encouraging compliance. I accept that evidence. At any rate, it seems to me that if one reads the whole of the reviews in question, which refer to the risks of absconding and reoffending if released, it is clear that that was indeed the reason for referring to the importance of the s.35 prosecution; it was in the context of getting an uncooperative detainee to cooperate.

I find therefore that the Improper Purpose Ground is not made out.

The ground is put on the basis that the Claimant was suffering from a serious mental illness and that, having regard to paragraph 55.10 of the EIG, he ought not to have been detained.

From January 2009 until 25 August 2010 the category of those whose state of health brought them within para 55.10, was "those suffering from serious medical conditions or the mentally ill". The wording of the policy relating to the detention of the mentally ill was reformulated on 25 August 2010 to provide that:

“Certain persons are normally considered suitable for detention only in very exceptional circumstances…

…

The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:

…

•

those suffering from serious medical conditions which cannot be satisfactorily managed within detention

•

those suffering from serious mental illness which cannot be satisfactorily managed within detention …”

Mr Carter submits that this reformulation represented a change in policy and that, as such, the Defendant was bound to consider the Public Sector Equality Duty (“PSED”) under s.149 of the Equality Act 2010. The Defendant’s failure to consider the equality impact of the change in policy rendered the policy, and therefore the detention of the Claimant pursuant to that policy, unlawful. Mr Carter relies upon the decision in HA (Nigeria) v SSHD [2012] EWHC 979 (Admin) in which Singh J, in relation to this particular part of the EIG, stated that:

“194 In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake.”

Mr Hansen submits that the reformulation was intended to do no more than align the language of the guidance more accurately with the actual policy and departmental practice so as to provide a more explicit statement of existing policy. He relies upon the decision of the Court of Appeal in LE (Jamaica) v SSHD [2012] EWCA Civ 597 in which, also in relation to the same reformulation, it was held that insofar as the reformulation involved a qualification of the original wording, “such a qualification was implicit and gives effect to the true meaning of the policy”. In other words, the reformulation simply made express that which was implicit. However, as Mr Carter seeks to emphasise, HA (Nigeria) was not cited in the later decision of the Court of Appeal in LE (Jamaica) and he invites me to follow the approach taken in HA (Nigeria). I decline that invitation for the following reasons:

Accordingly, the PSED was not triggered and the policy was not rendered unlawful.

Mr Carter’s second point under this ground is that if there was no change in policy then the Defendant must in fact have been applying a “secret policy” prior to August 2010. However, that presupposes that the pre-August 2010 policy was in fact different in substance from the reformulated policy post August 2010, whereas, for reasons discussed in the preceding paragraphs, that was not the case.

Finally under this ground, Mr Carter contends that the Defendant failed to apply the policy to the Claimant in this case since she failed properly to acknowledge that the Claimant had a “serious mental illness” thus requiring exceptional circumstances to justify his detention. The difficulty for Mr Carter here is that the evidence does not suggest that the Claimant was suffering from a serious mental illness that could not be satisfactorily managed in detention. The Claimant’s pleaded case was that he was suffering from depression and that “on occasions he self-harmed”. Psychiatric evidence adduced by the Claimant provides that the Claimant had a “degree of depression” at the time of his release. Furthermore the case notes and/or detention reviews record that, for example:

In the light of that unchallenged evidence, it would appear that the Claimant’s condition was being satisfactorily managed in detention. As such, the policy was not even engaged.

In considering the application of the Defendant’s policy the Court's role is to ask whether she was entitled on the information before her to come to the conclusion or conclusions that she did (ZS (Afghanistan) v. SSHD [2015] EWCA Civ 1137). I find that the Defendant plainly was so entitled in all the circumstances.

For the reasons set out above, it is my judgment that the Hardial Singh Ground succeeds only in respect of the period of detention from 1 November 2012 to 6 March 2013. The detention was otherwise lawful. The Improper Purpose Ground and the Unlawful Policy Ground both fail.