This case concerned an action for unlawful detention. The Claimant was a Sudanese national who was subject to immigration detention following completion of his sentence for a serious offence. He was the subject of automatic deportation. The Claimant was detained from 29 March 2013 until 20 October 2015 when the Secretary of State decided to release him.
It was not in dispute that the Claimant had “deliberately and consistently refused to cooperate with the Secretary of State's efforts to remove him”.
The judge referred to the Claimant’s non-co-operation and to a number of authorities where this factor has been considered. He summarised the position thus: “On the one hand, non-cooperation may have the effect of substantially increasing the length of the reasonable time for which a person may be detained while the Defendant seeks to effect his removal. On the other hand, it is not a ‘trump card’ which justifies indefinite detention.”
The judge summarised the Secretary of State’s attempts to remove the Claimant by saying that it appeared that most of 2013 was spent in trying to arrange for him to be interviewed at the Sudanese Embassy and most of 2014 was taken up in trying to arrange for the Claimant to be interviewed at his detention centre.
Crucially the judge found that it appeared that no attempt had been made in 2015 to arrange a further interview despite the fact that enquiries in 2014 had already indicated that the Claimant could not be removed without an interview.
Applying the Hardial Singh principles the judge found that the Secretary of State was acting with reasonable diligence and expedition up to the end of 2014 and that the period to the end of 2014 was a reasonable period for the Claimant to be detained, but that the Secretary of State had not done anything in 2015 to progress the Claimant's removal.
This case is another example of a case where, despite the Claimant having refused to co-operate with the removal process, he was found to have been subject to unlawful detention.
In this case, counsel for the Secretary of State referred to the fact that consideration had been given to prosecuting the Claimant for his non-cooperation under s.35(3) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004: failing without reasonable excuse to comply with a requirement made by the Secretary of State to take specified action which the Secretary of State thinks will or may enable a travel document to be obtained by or for the Claimant which would facilitate the Claimant's deportation or removal from the United Kingdom. It had already been found in R. (on the application of Babbage) v Secretary of State for the Home Department  EWHC 148 Admin that detaining somebody for the purpose of prosecuting them under section 35 was not a lawful exercise of the power to detain which could only be used for the purpose of deporting the person concerned.
Interestingly, counsel for the Secretary of State argued that Babbage was wrongly decided as “detaining someone while they are prosecuted would be detaining them for the purposes of deporting them”. The judge found that if such prosecution was being used as a "route to drive compliance" according to one of the Home Office’s notes which the judge took to mean a form of pressure applied to the Claimant to encourage his cooperation with his removal, he could not accept this argument.
The judge pointed out that in any event there had been no prosecution in the present case. The judge found that “the notion that it is a lawful use of the power conferred by paragraph 2 of Schedule 3 to the Immigration Act 1971 to detain someone for a year while the relevant department gets round to initiating a prosecution only needs to be stated in order to be rejected.”