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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> PHH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3628 (Admin) (17 December 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3628.html Cite as: [2012] EWHC 3628 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/12/2012

Mr C M G Ockelton :

1. The claimant, who is an illegal entrant and a convicted criminal with a poor immigration history, has most recently been in immigration detention from 10 September 2011 until my order releasing him on 21 September 2012. By these proceedings he claims that that period of detention was, in whole or in part, unlawful. When originally issued, the claim included a claim under the Data Protection Act. Clive Lewis QC, sitting as a Deputy Judge of this Court, granted permission in relation to the unlawful detention claim, but refused it in relation to the Data Protection Act claim, and I need say no more about the latter.
2. The hearing before me was on 23 August 2012 and 21 September 2012. On the latter date I heard oral evidence from Marika Watson, an assistant director of UKBA working in the Criminal Casework Directorate, Michelle Smith, working in the Country Returns Operations and Strategy Department and responsible for emergency travel documents, and from the claimant. Following the hearing there were written submissions from both parties, including a reply by the claimant.
3. In so far as the claimant needs permission to amend his grounds to rely on the fourth Hardial Singh principle and to claim that his detention was in part unlawful for failure to comply with guidance, I grant it. The points are clearly arguable, but the evidential basis for them was not apparent until towards the end of the proceedings.

The Facts

A. The claimant's immigration history and convictions

4. The claimant says that he was born on 31 August 1984, that his name is P H H , and that he arrived in the United Kingdom on 1 May 2000, aged 15. He claimed asylum. His claim was refused on 25 May 2000. His appeal against that refusal was dismissed on 23 November 2000, and his appeal rights were exhausted shortly thereafter. As in countless other cases the government of the day appears to have taken no steps to remove him. It appears that the claimant started working, illegally, in a Chinese restaurant in Scarborough no later than 2003. He had been released on temporary admission, but he failed to observe the conditions. He was issued with new conditions in February and in August 2004, but did not comply with them. He was discovered at the restaurant in November 2004: again, no action appears to have been taken to remove him; instead, in June 2005 he was issued with new reporting conditions, with which he failed to comply.
5. On 2 December 2005 the claimant was arrested in possession of eight cloned credit cards and a false passport. He relied on the latter to give a false name and address to the police. He was released on police bail, but rearrested for the same offences within a week. He was convicted at Luton Crown Court of deception offences, handling stolen goods and possession of a false instrument with intent. In February 2006 he was sentenced to a total of twenty months and fourteen days imprisonment. In October 2006 he was served with notice of decision to make a deportation order. That decision carried a right of appeal, which the claimant exercised. His appeal was dismissed, and his appeal rights were exhausted by the end of January 2007. A deportation order was signed on 9 March 2007. The claimant was due to be released from his criminal sentence on 15 October 2007, but continued in detention under the Immigration Acts.
6. In conjunction with the decision to deport the claimant, the Secretary of State began attempts to obtain documentation for him from the Chinese authorities, while the claimant brought judicial review proceedings, twice, seeking disclosure of the communications between the Secretary of State and the Chinese authorities about him. But on 29 February 2008, the claimant indicated that he would return voluntarily to China, and made an application under the Facilitated Return Scheme. In view of that, he was released from immigration detention on 4 March 2008, subject to reporting conditions. He reported once, but then failed to comply further with the conditions of his release. He was next heard of in Glasgow on 7 November 2010, when he was encountered by Customs Officers visiting a flat in Glasgow. He gave a false name to them, he was arrested, and then gave the name he claims is his. After being interviewed by an Immigration Officer, he was released on temporary admission, with reporting restrictions, but failed to report even once.
7. The claimant was then discovered in London on 10 September 2011, and was detained under the powers of the Immigration Acts. The present proceedings were issued on 18 May 2012.

B. Attempts to obtain documentation for the claimant

(i) 2007-2008

8. The defendant made efforts to obtain a travel document for the claimant, in connection with the decision to make a deportation order against him. The claimant was given a form to fill in. It asked him to give his address in China. He gave an incomplete address, leaving out the street name, writing only "179-180 Jiu Jiang City, Jiang Xi Province". The form was nevertheless submitted to the Chinese authorities, who refused to verify his identity because the address was incomplete. Through his solicitors, the claimant was invited to provide any further information. Within a month or so, the address had "Wu Yi Road" added to it. The application was resubmitted, but apparently again rejected.
9. The next step was that the defendant referred the claimant's case to the "country targeting unit", and arrangements were made for the claimant to be interviewed by a Chinese Embassy Official. That interview took place on 17 May 2007. The Chinese refused to issue a travel document as they were unable to verify the claimant's nationality from the information he had given.
10. The claimant was then interviewed again by an Immigration Officer and a further application was submitted to the Chinese authorities, and again rejected. The Secretary of State's Criminal Casework Team appear to have been told that the claimant's address was wrong and his date of birth "questionable". The Secretary of State then sent the details to the British Embassy in Beijing, and received a response on 12 October 2007 saying that the address details were "totally false". On 14 February 2008 the Secretary of State attempted to persuade the Chinese authorities to look at the matter again, but they refused saying that the claimant had consistently provided false details. Meanwhile, the claimant had, as I have said, begun judicial review proceedings seeking disclosure of the communications between the Chinese authorities and the Secretary of State. The first claim was withdrawn as it had been brought prematurely. In the second claim, the permission application was ordered into Court and the defendant was required to have the relevant documents available, so that the Court could decide whether they should be disclosed. A bundle of over a hundred pages was prepared.
11. At that time, however, as I have said, the claimant said that he would return to China voluntarily and, on the basis of that, was released from detention. There was a letter from the Secretary of State to the claimant's solicitor on 15 April 2008 confirming that the defendant did not concede that permission should be granted, nor that the claimant could not be removed within a reasonable period or that his detention was unlawful. He had been released simply because of his willingness to return to China voluntarily. I do not think that I have seen any formal conclusion of the judicial review proceedings. No further action appears to have been taken on either side following the claimant's absconding very soon after the Secretary of State's letter.

(ii) 2011-2012

12. At the time of the claimant's detention on 10 September 2011 the Home Office file relating to him was in Liverpool. Arrangements were made for it to be brought to Croydon. That journey took exactly a month: it arrived in Croydon on 10 October 2011. It then took a further nine days before it reached the case-owner, on 20 October 2011. The case-owner then sought an emergency travel document interview, but the application was rejected internally. It appears that the application had been made on the wrong form, and, so far as I understand the evidence, UKBA internal procedures do not allow an emergency travel document interview to take place if the case-owner has applied for it on the wrong form. It took exactly another month before the case-owner made another application, this time on the correct form. The interview took place on 22 December 2011. Christmas then intervened.
13. On 5 January 2012 the available material was sent, apparently internally, to a document liaison officer. His task was to "check" the material. He had completed that task by 18 January, when he returned it. The claimant's information was then sent to the Returns Liaison Officer based at the British Embassy in China, for him to check the details. He responded very quickly as follows:

"Hi, this chap is definitely lying. No CRS trace is found. The provided address is not correct as there is [no] such road in Jiujiang City and also there are no district/town/village information. It is not genuine, either. I think he is highly likely to be Fujianese but he provided one false in other province to frustrate our investigation. His name, looks weird really. The Chinese characters in his given names are not meaningful and are rarely used in people's names. So I think he did not provide his genuine [name] either. His parents' names sound like nick names. All in all, every piece of info he provided is very dodgy and needs to be revised."

14. Because of that response from the Officer at the Embassy, the details were not on this occasion sent to the Chinese officials. The claimant's case was then sent to the Country Specific Investigation Team on 10 February 2012. On 27 February 2012, the case-owner discovered that there was in the file a declaration made by the claimant on 28 October 2007. The important paragraphs are as follows:

"2. The reason given by the Chinese authorities for not being able to issue me with a travel document is that I have given an incorrect road name for my former home address; this is not true. I have provided by correct address at the time. The address may as well have changed, as far as I am aware since I left China over seven years ago there has been a huge amount of development and change due to industrial development. Towns, villages and roads have been rebuilt; the address at which I used to live may well no longer be in existence. I am not in contact with anyone who would be able to confirm this. I can think of no other reason why the Chinese authorities would not be able to locate my former address.

3. I would like to confirm that I continue to fully comply with all attempts to obtain a travel document on my behalf, being truthful and providing all the information that I can."

15. That was sent to the Returns Liaison Officer as well, but did not cause him to change his mind. A Returns Manager based at the British Embassy in Beijing also stated his belief that the claimant was not providing true details:

"We have been unable to identify this subject given the inadequate information he has provided. Not only has he given very scant details re original home address but also he has refused to provide his identity card details and other family information which would enable us to verify his identity. It is our experience that the Chinese Public Security Provincial Officials retain accurate household registration details even (and especially) where there have been new developments and old districts demolished. This subject is patently not providing truthful bio details and home address. It would appear that his stance here has not changed since the "witness statement" of 2007".

16. That response was sent to the claimant's solicitors with an indication that it derived from Chinese officials. It is clear from its wording that it does not derive from Chinese officials, however: and it is right to say that the 28 October 2007 statement has probably not been seen by any Chinese official.
17. The next step was to apply "Operation Elucidate" to the claimant's case. In this Operation, Chinese officials visit the United Kingdom and conduct interviews with those on whose behalf the Secretary of State seeks documentation. The claimant was interviewed by Chinese officials on 25 April 2012. On 11 May 2012, they stated that they were unable to confirm his identity. It appears that at that stage the Secretary of State was advised in the following terms:

"Officials believe subject is from Fu Qing City, Fujian Province"

18. That information was not conveyed to the claimant until 30 August 2012, and there is still doubt about its provenance.
19. The claimant's case had been referred to the defendant's Country Specific Investigation Team on 10 February 2012. The Team holds "surgeries" at which difficult cases are discussed. The claimant's case was discussed at such a surgery for the first time on 24 May 2012. It was decided that one possible way forward would be for known associates of the claimant to be contacted and interviewed. A further three weeks passed before the defendant contacted HMP Bedford and Brook House IRC to see whether they had any details of phone calls or visits to the claimant. None were found. On 11 July 2012 the defendant began the process of obtaining details of those who had stood surety for the claimant. By the date of the hearing in September, a certain amount of progress had been made (but not very much); further, by that date the Secretary of State had decided to conduct a further interview with the claimant. It was originally scheduled for 9 October. For some reason my order for his release meant that it had to be delayed. It took place on 11 October 2012.

C. Information provided by the claimant

20. It is right to look briefly at the information the claimant has provided, because Mr Nathan's position on his behalf is that the claimant has given all the information he is able to give, and has been consistent in the information he has given (at least, on the occasions when he has used the identity of P H H ).
21. The claimant gave details on a "bio-data information" form on 23 January 2007. He gave his name as P H H , date of birth 31 August 1984. He gave names for his mother and his father, and said that they had both died in 1989. He said that he had not been employed in China, but had been at Jui Jiang 3 School from 1992 to 1995. He declined to give the name of the principal. In the space for "name and address of family doctor/local hospital" is written "no". As I have already said, at that stage he did not provide the name of the street in which he said he lived.
22. That information was provided for the first time on a similar form dated 3 August 2007. On that occasion he again gave no information about his family doctor or local hospital, but he now said that he had been at Jui Jiang 3 Primary School from the age of 8 to 13 which would be from 1992 to 1997. Another form was completed on 25 September 2007. This time, the dates of the claimant's schooling had returned to 1992-1995. He still would not give the name of a local family doctor or local hospital, but there is a new question: name, address and telephone number of any living relative in China. The answer given is "none". Another similar form was filled in on 22 December 2011. The years of schooling are again 1992 to 1995, but the school has changed: it is now Xi Hua Primary School. The question "name address and telephone number of any living relative in China" is now answered as follows: "Uncle – He Feng". No further details are given. The claimant now also indicates that there was a local hospital: Jiu Jiang City 3^rd Peoples Hospital.
23. Other than speculation as to the demolition of the street in which he claims he lived, the claimant seems to have provided no other information voluntarily. He does not appear to have responded to the suggestion that the names he gave for his parents are in truth nicknames, and he has not sought to expand on the information he has given in the completion of the bio-data information forms.

D. Detention reviews

24. Following the claimant's detention, the first review of his detention was due on 7 October 2011. On that date, his file was still making its slow journey from Liverpool to Croydon, and the review was missed. It took place on 21 October. The review itself is very far from forthcoming on this point. It is dated 7 October 2011, and is indeed described in the table of contents in the defendant's bundle as bearing that date. That is the date on which the review should have taken place, not the date on which it did take place. However, in its text it records the transfer of the claimant's case to the Croydon Criminal Casework Team on 21 October 2011, and the Senior Officer's authorisation for the continuation of detention is dated 21 October 2011, and records also that the date when the next review would be due is 4 November 2011, although the authorisation is for detention for "a further 28 days".
25. In the review itself, the case officer states "I propose to detain Mr He until he cooperates with the ETD process and a travel document can be obtained for his removal to China". Mr Nathan relies on that statement as indicating that detention was for an improper motive, but I agree with what is said on behalf of the defendant on this issue. The Case Officer was not in a position to authorise detention: his Senior Officer was, and there was no suggestion that the Senior Officer authorised detention for that reason or purpose.
26. Subsequent reviews have been undertaken at the appropriate intervals, and there is nothing more that I need to say about them.

The Law

27. A person who has been the subject of a decision to deport him, or of a deportation order, can be detained under the authority of paragraphs 2(2) and (3) of Schedule 3 to the Immigration Act 1971. The exercise of the power to detain is not subject to any express statutory limitations, but a number of cases, beginning with the judgement of Woolf J (as he then was) in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, have established that the power is not unlimited in scope. The principal restrictions ("the Hardial Singh principles") are most conveniently set out in the judgement of Dyson LJ (as he then was) in R (I) v SSHD [2002] EWCA Civ 888:

(1) First, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(2) secondly, the deportee may only be detained for a period that is reasonable in all the circumstances;

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

(4) the Secretary of State should act with reasonable diligence and expedition to effect removal.

28. There is no specified period of time for which the Secretary of State is, or is not, permitted to detain under Immigration Act powers. An assessment of the legality of detention has to be conducted on a case by case basis, and is fact-specific. In I itself, Dyson LJ indicated at [48] that circumstances relevant to the length of lawful detention, included

"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."

29. In his judgement in R (Lumba) v SSHD [2011] UKSC 12, Lord Dyson affirmed the analysis he had given in I and said that the risks of absconding and reoffending are always of paramount importance, since if they materialise they will frustrate the deportation for which the individual is to be detained, and the likely reasons for it (at [107], [110], [121]). In that case the Supreme Court held that to detain a person pursuant to an undisclosed policy that was contrary to the Secretary of State's published policy was unlawful and amounted to the tort of false imprisonment: the person detained was entitled to damages, but they would be only nominal if he would have been detained if the published policy had been applied. In its subsequent decision in R (Kambadzi) v SSHD [2011] UKSC 23 the Supreme Court decided by a majority that detention maintained in breach of published policies as to the conduct of detention was to be analysed similarly: if there are directions requiring reviews at specified intervals, failure to conduct the reviews rendered the detention unlawful.
30. That a person's refusal to provide necessary information, or to cooperate with the machinery of deportation is a highly significant factor in assessing whether prolonged detention is unlawful, is established in a number of cases, for example R v Governor of HMP Rochester ex parte Lehchibi [1997] EWHC 40 (Admin) and Chen v SSHD [2002] EWHC 2797 (Admin). A delay in removal that is caused by an individual's failure to cooperate with attempts to document him is likely, therefore, to extend the time during which he can be lawfully detained. Examples are R (Qaderi) v SSHD [2008] EWHC 1033 (Admin), and R (Sino) v SSHD [2011] EWHC 2249 (Admin), a decision of John Howell QC sitting as a Deputy Judge of this Court, upon which Mr Nathan places considerable reliance. In that case the judge conducted a review of the authorities and, under the head of an analysis of the second Hardial Singh principle, considered the question of the relevance of a person's unwillingness to co-operate in providing the information necessary for the issue of documentation. He said this:

"[54] There is thus an apparent tension between the approach the Supreme Court adopted in Lumba to periods of detention for which it may be said the detainee is responsible: a period of detention is largely to be disregarded in the case of a hopeless appeal but it should not be similarly disregarded merely because it could have been brought to an end by a detainee agreeing to leave voluntarily. How then should a refusal by an individual without valid passport to co-operate in obtaining travel documents to enable him to return be treated when assessing compliance with the second Hardial Singh principle and what significance should be given to efforts that he may make to frustrate their acquisition by supplying false or misleading information?

…

[56] In my judgement the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee's own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may be well be longer than it will be in the case of individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him. That is not merely the case at common law: see eg R (Rostami v Home Secretary [2009] EWHC 2094 (QB) at [70]-[73]; R (HY) v Home Secretary [2010] EWHC 1678 (Admin) at [29]. It is also a conclusion to which article 5 of the Convention points. In Mikolenko v Estonia (2009) Oct 9^th App No 10664/05 the European Court of Human Rights found that there was a breach of article 5 of the Convention when an individual was detained when it was impossible to remove him from Estonia without his co-operation which he was not willing to give."

31. He then went on to decide that there is no fixed outer limit for lawful detention under the Immigration Acts, but that the question is fact-sensitive. He then emphasised the importance of the third Hardial Singh principle, and the need for the Secretary of State to keep under review not only whether the detention had ceased to be reasonable by reason of its past extent, but also the prospects of removal within a reasonable time in the future. As to the fourth Hardial Singh principle, he observed:

"[68] But the circumstances may be such that, even if the Secretary of State had acted with reasonable diligence and expedition, an individual would still have been in detention and the period for which he has been detained may otherwise still be reasonable. In such a case the Secretary of State's failure would have no causative effect on the length of such an individual's detention. As mentioned above, Lord Dyson indicated in Lumba that one of the factors to be taken into account in determining whether an individual has been detained for more than a reasonable period was the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles. This would suggest that any failure by her to act with reasonable diligence and expedition to effect removal would not necessarily of itself in all cases render any further continued detention unlawful. That is also supported by Lady Hale's statement in SK supra at [64] that "if the Secretary of State is dragging his feet, then the period may become unreasonable".

[69] On behalf of the Claimant Ms Harrison was minded to accept that the Secretary of State's failure to act with reasonable diligence and expedition to effect removal would not make detention unlawful unless that had had an effect on the length of an individual's detention. Unsurprisingly perhaps Mr Thomann on behalf of the Secretary of State agreed. In my judgment this may well be the case. But an earlier failure to act with reasonable diligence and expedition may well mean that it is reasonable to expect that the Secretary of State should act thereafter with greater diligence and expedition than she might otherwise reasonably be expected to do. Thus, even if that failure does not itself make detention unlawful subsequently, it may affect what a reasonable period in such a case would be. "

32. The criminal law may also be of relevance in this area. Section 35(1) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 empowers the Secretary of State to require a person to take specified action if the Secretary of State thinks that (a) the action will or may enable a travel document to be obtained by or for the person, and (b) possession of the travel document will facilitate the person's deportation or removal from the United Kingdom. In particular, the Secretary of State may require the person to provide information to the Secretary of State or to obtain information or documents, may require a person to cooperate with a process designed to enable determination of an application, and may require a person to attend an interview and answer questions accurately and completely. Section 35(3) of the Act creates a criminal offence of failing without reasonable excuse to comply with a requirement made under s35(1). A person guilty of an offence under s35(3) is liable on conviction on indictment to imprisonment not exceeding two years, or on summary conviction to imprisonment not exceeding twelve months.
33. Finally, it should be noted that s24(1) of the Immigration Act 1971 makes it a criminal offence, punishable on summary conviction with a fine, or imprisonment for not more than six months, or both, to fail to observe any restriction or reporting condition of the type imposed on the claimant in this case.

Discussion

34. It is convenient to begin with the claimant's own conduct in providing information. His position, as stated by Mr Nathan, is that he has always provided the best evidence possible to facilitate obtaining travel documentation, that that information has been consistent throughout, and that he is simply unable to give any more information. The true position could hardly be more different. As the facts set out above show, he has trickled new information to the Secretary of State over a period of years, adding the name of his street, hospital and uncle to the material originally provided. He has not been consistent: he has changed the name of his school and the period he was there, and his previous null responses on other issues are inconsistent with dates he has subsequently provided.
35. Further, in my judgment it cannot be right that he is unable to give any more information. The claimant was in China, on his account, for the whole of his childhood and adolescence, including the whole of the period of his schooling. He is the living world expert on his own history. He must have countless stories to tell and details to give about his life before he left China: the sort of details that would allow anybody else to build up a picture of his circumstances, to reach a view about whether the truth was being told and probably to make a judgment about the place he was talking about, or at any rate to decide for certain whether he was describing the place he claimed to describe. The claimant can no doubt give a detailed account of his house or flat, his street, the journey to school. He can describe the school itself, say what he studied over whatever years he now says he studied, and who his teachers were. He may be able to describe school outings; he must know something about the general geography of the town in which he lived, including the shops and any notable features. He must have had friends, or acquaintances, or enemies at school, whose names he can give; and it is likely that he went to some of their houses and can say where they were. He can say how he spent the time out of school, both during schooling and afterwards, where he went, what he did and with whom. He has given none of this information.
36. Of course it might be said that nobody has asked him to. But that is not the point. He cannot claim to be co-operating if he never volunteers information. If he really does come from Jiu Jiang City he will be able to give so many details of his life there that nobody who knows the place or can find out about is likely to be in any doubt that he is telling the truth. Instead, he gives incomplete information, grudgingly. Anybody reviewing his conduct will appreciate not only that he has much more information to give, but that, based on the history so far, he may well eventually decide to give it.
37. For these reasons, it does not seem to me that there has ever been a time when the Secretary of State ought to have concluded that there was no realistic prospect of documenting the claimant. Any questionnaire administered to him may be answered in a way that provides more information, or the claimant may provide more information without prompting. The claimant's case is that he is at all times ready to give all the information he can. Until he has given all the information he can, he cannot base a claim on an assertion that the Secretary of State ought to have appreciated that there would be no more information.
38. So far as the claimant's general conduct is concerned, two factors in particular stand out. First, he has been convicted of a number of offences of premeditated dishonesty, which merited a substantial prison sentence. Secondly, in the period leading up to the decisions under review, he had absconded on every occasion when he was released on conditions, apparently working illegally as well as failing to report. Without any doubt he is to be described as dishonest and wholly untrustworthy. There could have been no realistic doubt that his release would pose a risk of offences against s 24 of the Immigration Act 1971 if not further offences of dishonesty, and that it might be difficult to trace him if he absconded.
39. The claimant seeks to derive comfort in these proceedings from a number of features of the Secretary of State's dealings with him. In my judgment none of the following points can assist him. First, he seeks to challenge the length of his detention partly on the basis that his total detention under the Immigration Acts accounts to over two years. I see no good reason for this arithmetical argument. There was no challenge, or at any rate no successful challenge, to any of the previous detentions, which accordingly fall to be regarded as not unlawful. It might have been wrong for the Secretary of State to start the documentation process anew at the beginning of the detention under challenge, but she did not do so. She continued the process begun during the previous detention, and, for the reasons already given, was entitled to think that some more information, relevant to the documentation exercise, might be forthcoming, as indeed it was.
40. Secondly, the claimant points to his release from detention in November 2010, after being discovered in Glasgow. He says that the decision to release him then was the right decision, and must have been based on an assessment that there was no prospect of his deportation within a reasonable time. I make no comment on the first limb of that submission. There is no evidence supporting the second and, even if there were, it does not follow that the prospects at the time of his most recent detention were the same.
41. Thirdly, the claimant says that the decision to maintain his detention in order that he could be examined by Chinese officials in "Operation Elucidate" was unjustified, because his case had already been put to the Chinese in a similar or identical process previously. The Secretary of State responds that some re-applications had met with success in an apparently slightly different diplomatic climate. I see no reason to dismiss that explanation as unsound.
42. That takes me to the next major point raised by the claimant, which is essentially that he has a right not merely to be made aware of all the material passing between Her Majesty's Government and the Chinese authorities relative to his case, but also to dictate to the former what communications it should make with the latter. The first element of that argument was raised in the earlier judicial review proceedings; as I have said, in view of the terms of the grant of permission I am not concerned with it. The second element appears particularly in the claimant's claim that his 'witness statement' of October 2007, in which he speculated that his house might have been demolished, should have been put directly to the Chinese, and in his complaint that the details of the file by January 2012 should have formed the basis of a formal application by the government to the Chinese authorities rather than being rejected by the British Embassy.
43. In my judgment it is simply beyond argument that in both cases the decisions made were entirely open to the Secretary of State in the sense that, given all the other information available and the history, they were entirely rational. More important, however, is the diplomatic context. Communications between governments on issues like this are likely to be sensitive, and it may well be supposed that a government seeking travel documentation would not wish to endanger either happy relations or practical arrangements, or to waste limited resources, by insisting on the consideration of obviously unmeritorious applications. The same applies to a request for a reconsideration on a basis that can be regarded as both obvious in a general sense and speculative in the specific sense: by that I mean that the Chinese authorities might be taken to appreciate that there has been a great deal of demolition and re-development in their own country, and the claimant does not claim to have any specific knowledge about his own street. In any event there is, so far as I have been made aware, no reason why the claimant should not communicate directly to the Chinese Embassy in London any information he thinks they ought to have.
44. In general, it appears to me, the claimant is not entitled to set a programme or a timetable for the Secretary of State's attempts to document him. The Secretary of State is constrained by the authorities to which I have referred in determining whether detention should be begun or continued; and to that end the claimant is entitled, in proceedings such as these, to challenge the rate of progress and the prospects of success at any particular stage, but little more.
45. Having said all that, there are features of the Secretary of State's conduct of the present case that have caused me real concern. At a number of stages progress seems to have been hindered by circumstances that it is difficult to imagine might occur in a well-conducted organisation, particularly one in which proper regard was had to the fact that delay by officials may lead to the extension of periods of detention.
46. I have already set out the dates relating to the transfer of the claimant's file from Liverpool to Croydon, and then within Croydon to the desk of someone capable of dealing with it. I have no idea what justification, if any, can be offered for taking about six weeks to transfer a file from one of the defendant's officers to another. Certainly the fact that it took that long does not suggest that the defendant had in mind the fact that the claimant was in detention and that he would have to spend every day and night in detention until somebody looked at his file and made a decision. The time that the transfer of the file took meant inevitably that the first detention review was missed: the file was in transit on the relevant date. The consequence was, as the defendant now accepts on the authority of Kambadzi, that the claimant's detention became unlawful from the date when the review should have taken place until the date when it did. I have given careful consideration to the question whether the defendant can be taken to have concealed the fact of the missed review. On the one hand it is clear that the review is dated 7 October, and that there is no specific reference to its having taken place after that date. But on the other hand anybody reading it in full would appreciate, because of the reference to the transfer on 21 October, that it could not have taken place on 7 October. It seems to me that the review shows the signs of error, which I do not condone, but not the signs of deliberate concealment of the error; and in fact when the review is read in full the error is not concealed.
47. The next point of concern is the quite extraordinary procedure in October and November 2011, when an internal UKBA request for an internal UKBA interview was refused by a UKBA official on the ground that the request had been made on an outdated form, which meant that the request had to be re-submitted on the correct form before any further progress could be made in documenting the claimant. The delay appears to have been exactly a month. I know of no justification for this delay, and, again, it suggests very clearly that the officials involved did not have in mind that this bureaucratic jousting was risking adding a further month to a person's detention. After that date there was no single event giving cause for concern as to delay. I do not accept Mr Nathan's submission that the Secretary of State should have referred the claimant's case to one of the 'surgeries' before May 2012: it was for the relevant officers to decide what help they needed and when they needed it. But it became clear on the second day of the hearing in September that matters were proceeding very slowly indeed. It appeared to me that the cumulative effect of the various delaying factors had by then the effect that it could properly be said that further detention was not justified. It was for that reason that I ordered the claimant's release.
48. There is, however, another factor in the Secretary of State's dealing with the claimant that demands a little more scrutiny. This relates to the arrangements for the "Operation Elucidate" interview, and the presence and role of an interpreter at it.
49. One might wonder why an interpreter is needed in order to enable a person who claims to be Chinese to communicate with officials from his own country. The precise role of the interpreter is, I have to say, somewhat obscure despite the explanations I received from Ms Smith. I accept that it is in the Home Office's interest to have a person present at the interview other than the Chinese officials and the applicant, and it is of course important for such a person to be able to understand what is said at the interview and report back. If it is convenient for such a person to be called an "interpreter" so be it; and evidently there is a role in interpreting the interview to the UK officials after the event. The interpreter assists the applicant before the interview in completing a form with details sought by the Chinese interviewers, and sits in on the interview itself and, I understand, on some at any rate of the discussions the interviewers may have amongst themselves. Remarkably, the interpreter, although an employee of the Home Office, has no duty to take a note of the interview itself. Ms Smith told me that she saw his primary role as to enable the Secretary of State to have some insight into the way an interviewee might be treated, with the implication that this was to the applicant's benefit and offered some level of protection. It transpired however, that the interpreter is likely to collect and record information disclosed at the interview only if it assists the Secretary of State, by for example adding to or being inconsistent with what the applicant has already said: but even that would be haphazard as the interpreter has no knowledge of the applicant's history and has not read the file. Ms Smith appeared to claim responsibility for the Operation, including the role of the interpreter, but she was unable to give any information about guidance or instructions given to the interpreters about their function. I regard this as highly unsatisfactory.
50. The casual way in which this process is performed was underlined by the result of Mr Nathan's enquiries into whether it might be the case that anything else had been said at the interview and heard by the interpreter that might assist the claimant's case. In response, he received a copy of an email from an interpreter, Mrs Shih. It is in the terms that might be expected: Mrs Shih confirms that she was the interpreter at the claimant's interview, that Chinese officials opined that the claimant was from Fu Qing, and that nothing else was said that might be relevant.
51. The problem is that despite her asserted memory in these terms, Ms Shih was not the interpreter at the interview. The interpreter was male, in fact Mr Shih. There is now a statement from him too: it is of course in identical terms. There is no specific evidence on the point, but I think it may be taken that the text of the email was drafted by one of the officials dealing with the claimant's case, who had mistaken which of the Shihs was the actual interpreter and invited (in the result) each of them successively to state what was stated. If it had not been that the mistake also incorporated a mistake as to the interpreter's sex, the result would have been that the Court was asked to take into account evidence that could not be right. As it is, there is no obvious reason to give Mr Shih's statement very much more weight than the obviously fictitious statement to the same effect from Mrs Shih.

Application of the law to the facts

52. The claimant is the subject of a deportation order. He ought to be deported if he can be. His most recent detention followed a number of occasions when he had failed to comply with the terms of release. During it, the Secretary of State has been pursuing the process of attempting to document him. His detention has meant that he is available for interviews, and it meant that had the documentation process been completed, he would have been available for removal. I reject the submission, made a number of times by Mr Nathan, that the Secretary of State was using detention under the Immigration Acts as an alternative to prosecution for either of the offences I have mentioned. There is simply no evidential basis for it. I have no doubt that the detention was only for the purpose of effecting deportation. There was no breach of the first Hardial Singh principle.
53. The detention was for a period of one year and eleven days. The claimant is a Chinese national with a history of fraud, absconding and non-co-operation, and there is every reason to suppose that he would commit offences if at liberty. It is clear that he has more information about his background, and he has slowly provided information over a period of time. A period of detention was justified in order to improve the prospects of his removal. Given these factors and the obvious need for the Chinese authorities to have a proper opportunity to satisfy themselves of his identity and nationality I do not consider that the actual period of detention can be considered unreasonable.
54. Further, for reasons I have given, there was no time during it when the Secretary of State ought to have appreciated that removal within a reasonable time was no longer in prospect. There was no breach of the second or third Hardial Singh principles.
55. By the time of the second day of the hearing on 21 September 2012 it was apparent to me that the steps being taken were not properly capable of being described as undertaken with reasonable expedition. In order to consider the fourth Hardial Singh principle I need to decide whether there was any period before that date in respect of which the claimant has established that the Secretary of State was not acting with reasonable expedition to effect deportation and that the result of any delay was to increase the total time the claimant might spend in detention. Mr Nathan has boldly suggested two possible dates at which I should determine that detention would have concluded, if the Secretary of State had acted with the promptness and efficiency that she ought to have done. Despite the attractive and reasonable way in which he put those submissions I cannot accept them. He has also taken me in detail through the timetable of the various activities by the Secretary of State and invited me to conclude that some of them ought to have happened earlier than they did. That analysis does not take the claimant's case any further, for the following reasons.
56. What is reasonable expedition in any particular case will depend on many matters, only one of which is the circumstances of the individual case, although that itself will include the individual's own promptness and conduct. Some others are: the arrangements in place with the destination country and the timescales imposed by that country; and the funding of the relevant part of the Secretary of State's responsibilities and the relative priority of cases of the relevant sort and of the individual case amongst them. It is unlikely that there will be very much or any relevant evidence on these issues in any case, and there is really none here. Even if there were, it is difficult to see how it could be established that but for any particular specified delay other events would have taken place earlier than they did. In the result it is in general unlikely that a claimant will be able to show a breach of the fourth Hardial Singh principle unless the lack of expedition becomes egregious. Even in such a case, if the failure is not sufficient to merit immediate release it is likely to be difficult to establish thereafter that delay was the sole cause of any particular period of detention so as to render that period unlawful. On the other hand, a series of delays earlier in a period of detention may make a later delay less easy to justify; and the cumulative effect of delays may make a breach of the second Hardial Singh principle more likely.
57. In the present case there were four periods that demand attention under this head. The first is the period of five weeks while the file was in transit. That period also includes the period between the due date and the actual date of the claimant's first review. The Secretary of State accepts that on the authority of Kambadzi the claimant's detention was unlawful for that period, 7 October 2011 to 20 October 2011. But, given the circumstances of his case (as summarised above in relation to the first, second and third Hardial Singh principles) it was in my judgment inevitable that his detention would have continued throughout this period, covering the few weeks after he was taken into custody.
58. The second period is that between the two submissions of the forms seeking an internal Home Office interview a month apart in October and November 2011. In this period it is in my judgment clear that the Secretary of State was not acting with reasonable expedition. No justification has been offered for the enforced delay and it is difficult to see that there could be any justification. But at this period the detention was not of an unreasonable length, and although there might be speculation, there is, unfortunately for the claimant, no sound basis for saying that without that delay then, subsequent events would have taken place earlier. In particular there is no reason to suppose that his "Operation Elucidate" interview would have taken place earlier. It might have done: but there is no evidence even that the internal interview would have taken place earlier if the first application had been processed.
59. The third period of possible delay is identified by Mr Nathan in his criticism of the Secretary of State for referring the case to a "surgery" only in May 2012. She ought, submits Mr Nathan, to have appreciated earlier that the claimant's case posed difficulties and was suitable for discussion at such a meeting. There is nothing in this point. The Secretary of State is entitled to attempt strategies serially rather than simultaneously, and still be regarded as acting with reasonable expedition.
60. The fourth period is the period after the "surgery", when there had been advice to follow up the claimant's traceable contacts. Attempting to do that first by seeing what records there were of visits or calls to the places where he had been in detention was perfectly reasonable. Proceeding then to seek to trace his sureties was, again perfectly reasonable. Given the earlier delays, that process seemed to be taking an unconscionable length of time. I concluded on 21 September 2012 that by that date the fourth Hardial Singh principle had been breached. I find no breach of it proved before that date.
61. I do not need to deal separately with article 5 of the European Convention on Human Rights: in a case such as this the restraints imposed by the common law are more than adequate to ensure that detention authorised by article 5.1(f) does not continue in breach of the Convention.

Conclusion

62. I have expressed concerns in relation to the defendant's processes in a number of areas. Anybody reading the course of events during the claimant's detention might well be left with a feeling that there was a deficit of the principles of common humanity in the Secretary of State's dealings with a person held in detention solely on her orders. Although she has been able for the most part successfully to defend this claim it is unfortunate that the facts do indicate a certain carelessness as to the passage of time. And it seems to me that it is highly desirable that the role of the interpreter (or other official) present at "Operation Elucidate" and other similar interviews should be clarified and formalised.
63. The claimant is entitled to a declaration that he was detained unlawfully from 7 October 2011 to 20 October 2011. He is entitled to damages, but because his detention during that period was inevitable they are unlikely to be more than nominal. In all other respects his claim is dismissed.