Reported Case

Immigration/Public Law Detention – Administrative Court – Acted for Claimant - Challenge to lawfulness of Claimant’s detention for period of 23 months. Held: Detention Unlawful & Secretary of State’s actions were strikingly ineffectual.

The Defendant was fully entitled to detain the Claimant at the expiry of his prison sentence and to seek to deport him. There can be no doubt that there was lawful detention through to the appeal in July 2010. Given the findings of the Immigration Judge at the hearing in July, the Defendant was reasonably entitled to proceed on the assumption that the Claimant knew of living relatives in Kosovo but was declining to give their details. However, the picture is not of an unvarying refusal to co-operate since the Claimant was perfectly prepared to co-operate with a removal on 9 September 2010 and took no other positive step to prevent his removal. Indeed, he co-operated with the authorities in discussing his position repeatedly at interview and repeatedly stated the same story about his origins. This is not a case of active deception and frustration of removal.
What is striking about this story is the sequence of contradictory and ineffectual decisions and actions on the part of the officials acting for the Secretary of State. I fully recognise that theirs was not an easy task, but it is not unfair to conclude that by the end of the period of detention in late January 2012, the Defendant had not effectively advanced one step from the position they were in late 2010. It is perhaps particularly striking that the Secretary of State took months before deciding to contact the Claimants' foster parents and then took months without being able to do so effectively. Police officers made contact with Mrs McAffee within 24 hours of the request that they should do so. So far as I am able to determine, none of the officials acting on behalf of the Secretary of State managed to make any connection about this case with either the Kosovan or the Albanian Embassies. Overall, the activity here was strikingly ineffectual and, perhaps more to the point, no-one on behalf of the Secretary of State reached the conclusion that they were getting nowhere.

Doing the best that I can and making every allowance for the inherent difficulty faced by the Defendant, it appears to me that by 10 October 2011 at the latest, the Secretary of State should have realised that they were not going to effect removal within a reasonable period. The Claimant had by now been detained for 19 months. They had really made no progress. The Claimant had not assisted removal, but had not mounted any active campaign to frustrate removal, and had indicated his preparedness to be removed. The decision to detain on this occasion was made by a senior official, who expressed no view that it was going to be practical to remove the Claimant within a reasonable period. In the light of the period of detention already undergone, the Defendant's officials should have released the Claimant on bail, albeit with significant conditions and restrictions. I therefore find that the Claimant's detention was unlawful as from 10 October 2011.

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