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24 JUN 2014

R (On the Application Of Waryoba) v Secretary of State for the Home Department [2014] EWHC 1496 (Admin)

R (On the Application Of Waryoba) v Secretary of State for the Home Department [2014] EWHC 1496 (Admin)
The overall detention of the Claimant was lawful despite there being short periods of unlawfulness arising from delays in undertaking detention reviews. There had been no breach of the Hardial Singh principles.
13 May 2014
Queen’s Bench Division, Administrative Court
Alexander Nissen QC
(1) By this application for judicial review, the Claimant, Mr Joseph Waryoba, sought a declaration that the Defendant had falsely imprisoned him and sought damages in respect of that imprisonment. The Claimant was a Tanzanian national. His date of entry to the UK was not known.
(2) The Claimant was detained between 22nd June 2010 and 26th September 2012. His immigration detention immediately followed a custodial sentence arising from conviction for conspiracy to defraud and bail offences. These offences meant that the Claimant was subject to automatic deportation pursuant to section 32(5) of the UK Borders Act 2007. The Claimant was detained pursuant to section 36 of this act, pending his deportation. The Claimant had absconded after pleading guilty to conspiracy to defraud, and was considered a risk of absconding and re-offending. The Claimant relied upon a report by Professor Katona as evidence that he had been the victim of torture. That report also stated that consistent immigration detention worsened the Claimant’s mental health as a sufferer of depression and post-traumatic stress disorder.
(3) The Claimant brought three grounds of challenge in relation to the Hardial Singh principles:
(a) Detention was unreasonable and unlawful from 9th February 2010, or 10th or 12th of March 2012.
(b) By 16th July 2012, it should have been clear to the Defendant that she would not be able to effect deportation within a reasonable period, and so detention therefore became unlawful from that point.
(c) The Defendant failed to act with reasonable diligence and expedition to effect removal within a reasonable period of time.
(4) The 9th February 2012 was the date that Professor Katona’s medical report was issued. 10th March 2012 was the date that detention continued to be authorised after the report from Professor Katona, whilst 12th March 2012 was the date when the first tier tribunal acknowledged the diagnosis of depression and post traumatic stress disorder.
(5) The Defendant accepted that she failed to follow her policy to conduct regular reviews in-so-far that a number of the reviews that took place were delayed, in one case by 16 days.
(6) HELD: The Court acknowledged that even where individuals had criminal records, the power to detain ought to be exercised with caution. In determining the reasonableness of a period of detention, the Court considered the factors set out in R (Lumba and Mighty) v Home Secretary [2012] 1 AC 245.
(7) The Court noted the Claimant’s history of offending and that he evaded justice for over two years. This, along with his illegal entry to the UK, deprived him of any entitlement to rely on good character. The Court held that the risk of re-offending posed a risk of real harm. The Court found that until May 2012, there were ongoing legal appeals and proceedings, which were the real reason that the Claimant remained in detention. These challenges posed no prospect of success, and were aimed at frustrating removal during that time.
(8) The Court also noted that the Claimant did not cooperate in obtaining an Emergency Travel Document, instead maintaining a policy of dishonesty and misinformation. The Court agreed with the Defendant in finding that the Claimant posed the very highest risk of absconding.
(9) The Court found that there was clear evidence that the Claimant suffered from depression. Nonetheless, the Claimant did not try to obtain support for a claim of post traumatic stress disorder during his custodial imprisonment or the early part of his immigration detention. Thus, whilst not excluding the medical evidence, the Court attached little weight to it, finding that Professor Katona had not considered the impact of detention if the Claimant’s mental conditions were properly managed.
(10) The Court found that, bearing all of these factors into account, a reasonable period of detention had not expired by the time the Claimant was released.
(11) The Court was satisfied that there was no point, prior to the Claimant being released, at which it ought to have been apparent that the Claimant could be deported within a reasonable period. There were still realistic leads being followed up in August and September 2012
(12) The Court found that any failure to follow policy did not impact upon the overall duration of a reasonable period of detention. Ultimately, there was no consequence arising from the short periods of unlawful detention arising from the delays in the reviews taking place.
(13) The Court thus concluded that the Claimant’s detention until his release was lawful and not in breach of the Hardial Singh principles.
Claim dismissed.
Key paragraphs
[75] – Offending history.
[83] – Real harm.
[88] – May 2012.
[90] – Not cooperate.
[96] – Risk absconding.
[103] – Depression.
[109] – Little weight to medical evidence.
[110] – Reasonable period.
[117] – Realistic leads.
[122] – No consequence.
[125] – Conclusion.
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