Case No. CO/13206/2010 
Neutral Citation Number: [2011] EWHC 1514 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 12 May 2011
 
B e f o r e: 

HIS HONOUR JUDGE STEWART, QC
(Sitting as a Deputy High Court Judge)
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Between: 
THE QUEEN ON THE APPLICATION OF MJEMER 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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MR D CHIROCO (instructed by Bindmans) appeared on behalf of the Claimant 
MISS S LAMBERT (instructed by Treasury Solicotors) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	THE DEPUTY JUDGE:  1. The claimant has been in administrative detention under the Immigration Act since 31 December 2007, over three years, four months.  He is a young man in his late 20s.  
2.	In his claim form for judicial review filed on 23 December 2010, the claimant claims a declaration that his detention has been unlawful since such date as the court determines, but in any event, no later than 26 February 2010.  He also claims an order that he be released from detention forthwith and damages for false imprisonment and for breach of his article 5 rights.  
3.	On 15 February 2011, Mr Justice Ouseley granted permission with these observations:
"I am not at all sure that it is arguable that unlawfulness started as early as alleged, but it is arguable now, that the length of time and the state of the removal process have made it so.  There is otherwise a strong case for keeping the claimant in custody pending removal ..."
4.	The claimant submits:  
1.  His detention has exceeded a period that is reasonable in the circumstances;  
2.  It has become clear that the defendant cannot effect the claimant's deportation within a reasonable period;  
3.  The defendant has not acted with the reasonable diligence, speed and effectiveness in seeking to effect the claimant's deportation; 
5.	It is common ground that the claimant has used different aliases and made different claims about his nationality and has a substantial number of convictions.  The claimant's case is that those do not, however, justify his continued detention.   
UK Entry 
6.  On 16 August 2003, the claimant entered the UK clandestinely.  He claimed asylum as an Algerian.  He failed to attend an asylum screening interview on 31 October 2004.  On 10 February 2004 he claimed asylum as an Algerian using an alias.  In April/May 2005 he left the UK and went to Ireland where he claimed asylum, using yet another alias.  He was returned to the UK on 18 August 2005 under the Dublin II Convention. 
UK Criminal Convictions/Failure to Report/Absconding 
7.  Between 2004 and 2009 the claimant had 10 criminal convictions for a total of 25 offences, consisting of three offences against property, seven fraud and similar offences, one theft and similar offences, one public disorder offence, six offences relating to the police, courts, prison and seven for miscellaneous offences.  These include:  
(a) On 6 October 2005, the claimant was convicted for destroying or damaging property and two counts for failing to surrender to custody at the appointed time, resulting in a sentence of four months' imprisonment. 
(b) On 14 September 2006, he was convicted of driving whilst disqualified using a vehicle whilst uninsured and failing to surrender to custody at the appointed time, resulting in a 28‑day sentence.   
(c) On 2 November 2006, the claimant was given a suspended sentence for three counts of attempting to obtain property by deception and four counts of obtaining property by deception, resulting in a sentence of one year and eight months.   
(d) On 15 May 2007, the claimant was convicted for dangerous driving, driving whilst disqualified and using a vehicle without insurance and breaching a suspended sentence.  He was sentenced to one year and eight months in prison.   
8.  The claimant has a history of not complying with reporting conditions, for example on 21 October 2004, 10 January 2005, 25 January 2005, 2 March 2005 and 2 February 2007, he failed to surrender to custody as soon as possible after the appointed time whilst on police bail.  On 21 March 2007 the claimant failed to attend his probation appointment and a warrant was issued for his arrest. 

Claimant's Detention 

9.  On 20 December 2007, the claimant was served with notice of a decision to make a deportation order.  On 31 December 2007, the claimant was released from criminal custody, having served his sentence for the 15 May 2007 offence.  However, he has been detained since that date under the Immigration Act.  The claimant's appeal against the decision to make a deportation order was dismissed on 8 February 2008.  The claimant was served with a signed deportation order on 5 August 2009.  The defendant's case is that the claimant's conduct in detention has been appalling.  It is summarised by the defendant in the following four paragraphs taken from Miss Lambert's skeleton.   
10.  During his period of detention, the claimant has had 18 proven adjucations for conduct, including: threatening, abusive, insulting words or behaviour, disobeying a lawful order, damage to property, intentionally endangering health and safety, assault, biting and possession of an unauthorised article.  
11.  The claimant has been recorded as being verbally abusive and aggressive, for example, in June 2008 he spent 21 days in the Segregation Unit for threats against staff.  He has also threatened to strangle the next immigration officer who visits him.  He has been abusive and aggressive towards the judge and presenting officer in court at a bail hearing in July 2008.  In August 2008 the prison security advised that he was on 28 days' protocol in segregation due to volatile/violent behaviour and a three‑to‑four man crew was considered necessary at all times when dealing with him.  In March 2009, it was advised that he should not be seen by female presenting officers and in June 2010 he made inappropriate comments to a female member of staff, saying that he would "fill her in".  
12.  Most recently, on 20 September 2010, the claimant was placed in segregation for being in possession of two mobile phones, two batteries plus mobile battery, two SIM cards and a makeshift weapon.  An adjudication on this matter is said to be "currently pending".  Analysis has been carried out on mobile phones and SIM cards found in the claimant's cell and a request was made to HMP Wandsworth for the intelligence found to be released.  However, it appears that the intelligence provided no assistance in relation to the claimant's identity, nor his nationality. 
13.  The claimant has been assessed as posing a high risk of absconding on the basis of his refusals to comply with the documentation process, his history of failing to comply with police bail conditions and and lack of close ties in the UK.  He has also been assessed as posing a risk to the public because he has displayed consistently aggressive behaviour whilst detained.  Consequently he has also been assessed as unsuitable for the Immigration Removal Centre environment [I should point out that there is some dispute as to the facts in this summary.  The claimant does not accept that he threatened to "fill in" a female member of staff.  More importantly, in terms of evidential weight, though it is not disputed that prohibited items were found in the claimant's cell, it is disputed that they were his and that he put them there.  There has been no adjudication on this.  Further, the documents show that he was in fact placed in segregation for his own protection and not because of the prohibited items]. 
14.  The claimant's recent statement comments on his conduct in this way:  
"Regarding the risk that I will abscond I would like to make clear that I know in the past I have moved around lot and have not always reported when I was supposed to.  I never had a base and would move from one place to the next.  I cannot do that anymore, I cannot keep bouncing around from one place to the next.  I have nowhere to go anymore and I cannot keep running.  I have been watching the years go by while I am in the prison.  I was 23 when I went to prison and I will be 28 when the next judicial review hearing takes place.  Four years is a very long time when you were in your 20s and I have had a lot of time to work out what I want from my life.  I am older now and I want to stop running away from who I am and to establish myself somewhere.  I want to be able to see my friends and try and find my child.  I will keep to all conditions that are set.
"I acknowledge that my behaviour at times has been difficult while I have been detained, as I have explained before.  I get very frustrated and there are times when that has made me rude or stubborn.  It is not just the fact that I do not have a release date and just keep on being detained, but also the conditions that I am detained in. 
"I have been moved so many times.  Every time I get moved it is very difficult; you have to start again and find your place in each prison.  You have to work out the relationships between all the other prisoners and who to be careful of and you have to get used to different prison officers.  It is very stressful, I do not understand why they have moved me so much.  
"During my detention I have at times had to share cells with sentence‑serving prisoners.  This is not right.  I remember one time when I was in HMP Pentonville, I had been sharing a cell with someone that I got on well with, then he was removed and they brought in guy who was wearing prison clothes which meant that he was a convicted prisoner.  He was a complete junkie.  I could not stand it and refused to share a cell with him and was quite vocal about it.  It is situations like this which make me very frustrated and which have led to some of the adjudications. 
"Another time, in HMP Gloucester, I had to share a cell with a category A prisoner, Mr N, who had killed his wife: he had stabbed her 36 times.  Even as recently as the end of last year I had to share a cell with SA, who was serving 5 1/2 years for aggravated street robbery. 
"Living in these conditions for a long time has really got to me.  It is difficult not to act out every now and then.  It is frustrating and there is a lot of tension within the prisons.  
"I do not propose to go through all the adjudications:  I could not remember them all and there are no details on the file, so I cannot be sure if they are correct.  I can see that there are two adjudication for assault and one for fighting and I want to comment on these.  The one involving a fight was after I had a fight with man who we call Rabbi.  When I had been at HM, The Park, he and some other inmates had attacked me.  Later on, I saw him at HMP Bristol and I had a fight with him.  It was not serious and we are good friends now.  We both pled guilty to the fight.  The Governor did not treat it as particularly serious and I received a suspended sentence.  
"Of the two adjudications for assault, I remember the one at HMP Gloucester on 26 February 2009.  I spat at a prison officer.  It was a stupid thing to do and I regret it.  I do not want to excuse myself but I was very frustrated and wound up at that time.  Being in prison has brought out this kind of behaviour in me.  I do not remember the other adjudication for assault, I am sure that there were not any assaults when I was at Brixton.
I have tried to be more stable and there have been less adjudications in the last year.  The counselling has helped.  There was one incident where I told an officer to "fuck off you fat cunt".  It was a bad thing to say and I recognise that and I was embarrassed to tell my legal representatives and the court about it.  I do not want to minimise my actions; it was not meant to be threatening, and I was not violent, I was just very frustrated." 
 
Bail Applications 

15.  During his detention, the claimant has made 20 bail applications.  He has withdrawn ten, and ten have been refused.  The last was on 5 November 2010.  
16.  On 12 April 2011, Mr Justice Blair refused the claimant's interim application for release in these proceedings. 

Legal Background: Hardial Singh Principles 

17.  Before looking in detail at the removal efforts made and continuing to be made by the defendant, it is important to be clear as to the primary legal framework against which the claimant is to be judged, bearing in mind the basis of the claimant's claim as outlined in paragraph 4 of his judgment. 
18.  Paragraph 2 of schedule 3 of the Immigration Act 1971 contains the power of the defendant to detain pending deportation.  It provides:  
"(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him and he is not detained in pursuance of the sentence or order of the court, he may be detained under the authority of the Secretary of State, pending the making of the deportation order. 
"(3) Where a deportation order is in force against any person, he be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by measure of subparagraph 1 or 2 above when the order is made) shall continue to be detained unless he is released on bail or the Secretary of State corrects otherwise". 

19.  The power to detain is subject to the limitations that it may only be exercised for the statutory purpose and during such period as is reasonably necessary for that purpose.  These limitations are long established, having been set out by Mr Justice Woolf in the R v Governor of Durham Prison, Ex parte Hardial Singh, [1984] 1 WLR 704, at 706 (d) in these terms:
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied it is subject to limitations.  First of all it can only be authorised detention if the individual is being detained ... pending his removal.  It cannot be used for any other purpose.  Secondly, as the power is given in order to enable the machinery of deportation to be carried out.  I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose.  The period which is reasonable will depend upon the circumstances of the particular case.  What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.  In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which would be necessary to ensure the removal of the individual within a reasonable time."
20. The limitations were distilled to four propositions to Lord Justice Dyson in R (I) v Secretary of State [2002], EWCA CIV 888 at paragraph 46:
"(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 the Secretary of State will not be able to effect deportation within that 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." 
The majority of the Supreme Court recently approved these propositions in Walumba Lumba v Secretary of State for the Home Department [2011] UK SC12, paragraph 22. 

21.  In Walumba Lumba, Lord Dyson said this in paragraphs 103‑110:
"(103) A convenient starting point is to determine whether, and if so, whether there is a realistic prospect of the deportation taking place.  As I said in paragraph 47 of my judgment in R (I) there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to the time that person has already spent in detention.  I deal below with the factors which are relevant to a determination of the reasonable period, but if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.  
"(104) How long is a reasonable period?  At paragraph 48 of my judgment in R (I), I said:
	'It is not possible or desirable to produce an   exhaustive list of all the circumstances that are or may be relevant to 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 of the Immigration Act 1971.  But in my view, they do, at least: the length of 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 released from detention he will abscond and the danger that if released, he will commit criminal offences." 

"(105) So far as I am aware, subject to the following qualifications, the relevance of these factors has not been questioned.  The qualifications are, first, that the relevance of the risk of offending on release is challenged on behalf of the appellants in the present case ... 
"(107) ... it seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation or (more broadly) as a power which may also be exercised to further the object which is sought to achieve by deportation, namely in the present case, that of removing an offender whose presence is not conducive to the public good.  The distinction between these two objects was clearly drawn by the Court of Appeal in R(a) v Secretary of State for the Home Department [2007] EWCA CIV 804.  Lord Justice Toulson said in paragraph 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 oversimplistic.  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 he has a propensity to commit serious offences, protection for 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." 

Paragraph 78, Lord Justice Keene's judgment is to similar effect.
"(108)  I acknowledge that the principle that the statutory power should be interpreted in the way which is least restrictive of liberty, if that is possible, would tend to support the narrower intepretation, but I think that the Court of Appeal was right in R (A) to adopt the intepretation which gives effect to the purpose underlining the power to deport and which the power to detain is intended to facilitate.  Perhaps a simple way of reaching the same conclusion is to say, as Lord Justice Simon Brown said in R (I), paragraph 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is 'an obviously relevant circumstance'. 
"(109) The risk of re‑offending is a relevant factor, even if the appellants are right in saying that it is relevant only when there is also a risk of absconding, as Lord Rodger pointed out in argument, if a person re‑offends, there is a risk that he will abscond so as to evade arrest, or if he is arrested, that he would be prosecuted and receive a custodial sentence.  Either way, his re‑offending will impede his deportation.
(110) The risk of re‑offending is, therefore, a relevant factor." 
22.  Earlier, in (A), Lord Justice Toulson had referred to the risk of absconding and the refusal to accept voluntary repatriation.  He said this at paragraph 54:
"I accept the submission on behalf of the Home Secretary.  Where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors and likely often to be decisive factors in determining the reasonableness of a person's detention, provided the deportation is the genuine purpose of the detention.  The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made.  The refusal agreed on the voluntary repatriation is important, not only at evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once.  In the latter case, the loss of liberty involved in the individual's continued detention is a product of his own making".
23.  However, Lord Justice Keane in the same case said at paragraph 79: 
"I am not persuaded by Mr Giffen that the refusal by this detainee to return to Somalia voluntarily, when it was possible to do so, is some sort of trump card.  On this I see the force of what was said by Lord Justice Dyson in R (i), paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released.  After all, if there is, in a particular case, no real risk of his absconding, how could detention be justified in order to achieve deportation just because he has refused voluntary return.  The Home Office in such a case ex hypothesise would be able to lay lands on him whenever it wished to put the deportation order into effect.  Detention would not be necessary in order to fulfil the deportation order.  Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right, or as having a relevance solely in terms of the risk of absconding.  It is relevant that the individual could avoid detention by his voluntary act, but I do not accept that such a refusal was of the fundamental importance contended for by the Secretary of State." 
And in Walumba Lumba, Lord Dyson approved Lord Justice Keane's approach in paragraph 128:
"What about those who have no outstanding legal challenges?  Here, the fact that the detained person has refused voluntary return should not be regarded as a 'trump card' which enables the Secretary of State to continue to detain until deportation can be effective, whenever that might be.  That is because otherwise, as I said at paragraph 51 of my judgment in R(I): 
'The refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect a deportation.'
"If the refusal of voluntary return has any relevance in such cases, even if the risk of absconding cannot be inferred from a refusal, it must be limited.  That was the view of Simon Brown LJ in R(i) And Keane LJ in R(a) and I agree with them ".
24.  In R(MH) v SSHD [2010] EWCA CIV 1112, the Court of Appeal dismissed an appeal from Mr Justice Sales, who had held that 38 out of the claimant's 40 months' detention pending deportation had been lawful.  In paragraph 63, the court said:
"A period of 38 months' detention held by Judge Sales to have been lawful is a very long period indeed for administrative detention pending deportation.  Detention for that length of time merits the most anxious scrutiny." 
Then, in paragraph 65, the court continues:
"I do not read the judgments omitting J in R (A and others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention, the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected.  That would be to add an unwarranted gloss to the established principles.  In my view, omitting J was not purporting to do that, but was simply asking himself the question, 'By when' and, 'On what basis', for the purposes of his own consideration of the case before him.  Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise.  A soundly based expectation that removal can be effective within, say, two weeks, will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years, will weigh heavily against continued detention.  There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which or period within which removal can be reasonably be expected to occur and without any certainty that removal will occur.  Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise.  There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors.  Thus in A (Somalia) itself, there was 'Some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be',(per Toulson LJ, para 58), and that was held to be a sufficient prospect to justify a detention for a period of some four years when regard was had to other relevant factors, including in particular, a high risk of absconding and of serious re‑offending if A were released."
25.  In short, I must, in this case, bear in mind the following when considering the lawfulness of the detention:  
(a) The defendant's power to detain is only for a period which is reasonable in all circumstances.  
(b) I must start with determining whether, and, if so, when there is realistic prospect that deportation will take place.  If there is no realistic prospect, that deportation will take place within a reasonable time, a continued detention is unlawful.   
(c)  A very lengthy period such as that in this case merits the most anxious scrutiny.   
(d)  It is relevant to consider the following as part of the circumstances: 
(i)  The obstacles which stand in the defendant's path preventing deportation.  
(ii) The diligence, speed and effectiveness of the steps taken by the defendant to surmount such obstacles. 
(iii)  The conditions in which the claimant has been kept.  
(iv)  The effect of the detention upon him. 
(v)  The risk that if he is released he will commit criminal offences.  
(vi)  The risk that if he is released he will abscond.  
(vii)  The refusal by the claimant to be repatriated voluntarily may be relevant in terms of the risk of absconding.  Any other relevance, ie that the claimant could avoid detention by his voluntary act, is limited. 
26.  Further, it must be emphasised that the function of the court is to decide for itself whether the period of detention is reasonable in all the circumstances.  The court is not confined to applying Wednesbury principles to assess whether the defendant herself had rationally held the view that the period was reasonable. 

Legal background, Article 5 ECHR 

27.  Article 5 provides so far as relevant: 
"1.  Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty, save in the following cases and in accordance with a procedure prescribed by law:  
...
"1.  The lawful arrest or detention of a person to prevent his affecting an unauthorised entry into the country or of a person against whom action is being taken, with a view to deportation or extradition. 
"2.  Everyone who is arrested shall be informed properly and in a language which he understands with the reasons for this arrest being made against him ...
"3.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention not lawful.
"4.  Everyone who has been the victim of arrest or detention in contravention of provisions of this article shall have an enforcement right to compensation." 

The case of Winterwerp v Netherlands [1979] 2 EHRR 387, establishes that the domestic law must be in conformity with the Convention.   
28.  In his skeleton, claimant's counsel seeks to argue that the limitations to detention imposed by the convention are apparently more rigorous than the domestic law principles which I have previously set out.  However, in oral submission, the claimant submitted that in this case, nothing turns on any possible distinction between article 5 and the Hardail Singh principles as explained by the Supreme Court in Walumba Lumba.  I should therefore address only those principles in this judgment. 

Legal Background: Defendant's Published Policy 

29.  The following sections of chapter 55 of the Secretary of State's policy on detention ‑‑ the enforcement instructions and guidance ‑‑ are relevant because they assist in informing the lawful approach to detention in cases such as this one.
"55.1.1 General 
... The White Paper confirmed that there was a presumption in favour of temporary admissional release and that wherever possible we would use alternative detention ... to be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law, but must also accord with the state policy ...
"55.1.2 Criminal Casework: Directorate Cases. 
Cases concerning foreign national prisoners ‑‑ dealt with by the Criminal Casework Directorate (CCD) ‑‑ are subject to the general policy set out above in 55.1.1, agreeing a presumption in favour of a temporary admissional release.  Thus, the starting point in these cases remains that the person should be released on temporary admissional release unless the circumstances of the case require the use of detention.  However, the nature of these cases means that special attention must be paid to their individual circumstances.  In any case in which the criteria for considering deportation action ('the deportation criteria') are met.  The risk of re‑offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or release.  If it is of a clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria and/or because of the likely consequence of such a criminal record, the assessment of the risk is that such a person will abscond.  In many cases, this is likely to result in the conclusion that the person should be detained provided detention is and continues to be lawful...
"55.1.3 Use of Detention.
Detention must be used sparingly and for the shortest period necessary...
"55.2 Power to Detain 
Detention can only be lawfully exercised under these provisions where there is a realistic prospect of removal within a reasonable period ...
"55.3 (A) Decisions to detain CCD cases, as has been set out above, copy of the protections, a key consideration underpinning our detention policy ... in assessing what is reasonably necessary and proportionate in any individual case.  The case worker must look at all relevant factors in their case and weigh them against the particular risk of re‑offending and of absconding which the individual poses.  In balancing factors to make that assessment and what is reasonably necessary, UKBA distinguishes between more and less serious offences.  A list of those offences which UKBA considers to be more serious is set out at 55.3.2.1.   
"55.3.2.11  Those assessed as low or medium risk should generally be considered for management by rigorous contact management under the instructions in 55.24.5.  Any particular individual factors related to the profile of the offence or the individual concerned must also be taken into consideration and may indicate that maintaining management by rigorous contact management may not be appropriate in an individual case... 
Analysis 

30.  I return to the question of the lawfulness of the detention and of the matters to which I referred in paragraph 25 of this judgment.  Although I have already set out a number of facts, it will be necessary to refer to others since I carry out the balancing exercise required. 
31.  I first ask myself whether, and if so, there is a realistic prospect that deportation could take place.  In this regard, the defendant makes the following points: 
(i) It is common ground that the initial decision to detain the claimant pending removal was lawful. 
(ii) It is common ground that the claimant has used a number of aliases although the claimant accepts only five and it is submitted he has, in fact, used seven.  It is also common ground that the claimant has given several different accounts of how he came to the UK in the first place, and more importantly, as to his nationality. 
(iii) Although the claimant claimed to come from Western Sahara from as early as when he claimed asylum in Ireland in 2005, since then, he has also claimed variously to be British, Italian, Moroccan, Algerian, and even stateless.  Even when he has claimed to be from Western Sahara in the past, he did not give precise details about where he was born, except that in his 17 September 2009 letter he indicates it was Smarah.  He has also provided conflicting details about his parents.  For example, in February 2010, he said that his father (deceased) was Saleh Mjemer, and his mother (deceased) was Tahara Beneece; however, previously he has said that his parents were Abdallah Said and Aisha Raja. 
(iv) The claimant has accepted that he has previously given false information.  The result of his lack of cooperation with the renewal process is that there have been numerous delays caused by pursuit of various enquiries and tactics in order to ascertain his nationality and to effect removal.  These efforts have included:  
(a) an ETD interview on 8 April 2008 where he claimed to be Italian and to have a partner and a child.  However, the claimant refused to comply with the interview.  Since then, numerous attempts have been made to document the claimant but he continually fails to comply with the ETD process and has become aggressive towards staff interviewing him.   
(b) a further ETD interview on 29 May 2008, where a limited bio‑data form was completed and photographs were taken.  
(c) requests were made to the Italian Consulate in May 2008, asking him to confirm whether the claimant has any status in Italy or is known to them.  The Italian consulate confirmed that there was no record of him on their database as to the Social Services Department.  The consulate advised that the claimant can be deported to Italy for checks to be made at the police station there, but it could prove problematical if the claimant was not Italian.  Further enquiries are obviously ongoing. 
(d) a referral was made to CCD Ops in December 2008 for a section 35 interview and to confirm that the claimant was Algerian.   
(e) an application for an Algerian ETD was made in August 2009.  However, the information about his identity was not accepted by the Algerian authorities.   
32.  I have stopped at August 2009 because it is from that date that the claimant says that the court should carefully scrutinise the sequence of events.  Much of the information in this regard came by way of last minute disclosure from the defendant and in a recent witness statement dated 5 May 2011, from Richard Coy, a senior executive officer with the UK Border Agency.   

33.1  As I have said, on 23 August 2009, the claimant completed an emergency travel document form in which he identified himself as Algerian.  Given that his identity was not accepted by Algeria, the defendant has since then rejected any possibility that the claimant is Algerian and he himself has not claimed since then that he is Algerian. 
33.2  On 3 November 2009, and in letters of 14 December 2009 and 17 December 2009, the claimant gave an account of his origins as being Western Saharan.  Western Sahara, I am told, is territory that has, since 1975, been annexed or occupied by Morrocco.  A significant proportion of its population is displaced in refugee camps and its government in exile, viewed as legitimate by many Western Saharans, is in Algeria.   
33.3   On 11 January 2010, the claimant was interviewed by language analysts, who concluded that he speaks a version of Arabic found with certainty in Morocco but not in Algeria.  The claimant questioned why this was not done earlier.  However, having regard to the history I have set out in paragraphs 33.1 and 33.2 of this judgment, I do not accept any criticism of the defendant in this regard.   
33.4  On 5 February 2010, the claimant was interviewed and informed that enquiries would be carried out in Western Sahara and that this would be a lengthy process.  In fact, on 5 March 2010, an ETD was submitted in relation to Western Sahara.  By a letter dated 10 March 2010 from the UK Border Agency returned to the documentation unit, it was said that they could not forward it to the Western Sahara authorities because, "IS33 not countersigned by HEO/CIO".  The defendant has suggested there were other defects not apparent in that letter, namely that the claimant had not signed the ETD and the IO data was not sufficient.  Nevertheless, it is accepted that the defendant has done nothing since March 2010 to progress any possible deportation to Western Sahara.  This appears to be, on questioning of counsel, because of the language test, though it is significant to clarify that the language test did not consider whether the claimant's language was consistent or inconsistent with the claimant being of Western Sahara origin.  In any event, the defendant has not relied in these proceedings on removal to Western Sahara as something which could be effective within a period which is reasonable in all the circumstances. 
33.5.  On 29 March 2010, there was a meeting with the claimant to discuss other avenues.  It was suggested that contact be made with the French Police about Zakaria Mahsine (one of the claimant's aliases).  On 20 April 2010, French police confirmed a possible trace with a Zakarine Mohsinn, of Morrocan origin ‑‑ though with a different date of birth. 
33.6.  On 26 April 2010, whilst communicating with the British Embassy in Rabat on other matters, Mr Coy learnt that Morocco has excellent records of all Moroccans aged 16 years in their identity card system (over 23 million).  All Moroccans provide a set of ten fingerprints that are placed on an index card with their photo and some data about family and address.  I should mention that the claimant asked the question why the defendant did not know this before.  I do not know the answer to this question, but I cannot properly conclude that the lack of knowledge until then was culpable on the defendant's part.  33.7.  The claimant's fingerprints were taken in May 2010 and submitted along with those of four other people to the British Embassy in Rabat on 25 June 2010.  They were received by the Moroccan authorities on 2 July 2010 with requests translated into French.  The requests set out a brief history of the claimant, the fact that he is subject to a UK deportation order, and asks the Moroccan authorities to compare the claimant's fingerprints with the fingerprints which they have, so that the UK might verify the claimant's fingerprints are those of somebody of Moroccan citizenship.  33.8.  It is right to point out that there was some basis for optimism at this stage.  In an e‑mail dated 26 April 2010, "John" at the Embassy, had said: 
"With regard to enquiries such as these, there is only one way to establish if a person is Moroccan and that is through their fingerprints.  Morocco has excellent records of all Moroccans aged 16 years in their identity card system (over 23 million).  All Moroccans provide a set of ten fingerprints that are placed on an index card with their photo and some data about family and address.  These are stored in a large warehouse and classified by the British Fingerprint Method.  All these are going to be converted to a new electronic system with the introduction of the new identity card ‑‑ this will take four to five years.  Unfortunately, the process to identify will be to send the prints (x 10) here.  Photocopies are not good enough via the back and then for submission through the MFA to the National Police.  It is not a quick process, but I have the contacts to try and speed it up.  The searches are done automatically.  First, if negative, it is manual.  All fingerprints are archived and classified by the British Method.  If you are lucky, there will only be a few hits, this can be a quick search.  Otherwise, depending on how many hits, it takes longer.  Along with the fingerprints I will require a report on the individual to include details of their status and reason for request as we do not have a translator at the Embassy.  If you are sending me a report I would  ask that it is translated into French ... for your info, my colleagues from most EU countries have tried to use the local Moroccan Embassy to progress such cases for the deportation of criminals.  This has never produced results and they have established protocols through their Ministry of Interior's office to submit prints in manner described above.  We should think of something similar if the demand is going to be high or need becomes important."
That optimism was somewhat tempered by an e‑mail from John to Mr Coy, dated 16 July 2010, which said this: 
"Richard .. all received, thanks, and the attached report will be submitted next week (Monday).  Due to lack of information, I cannot foresee the replies coming back very quickly.  My other police liaison colleagues that submit this kind of enquiry on a regular basis inform me that they can take up to several months for the print results to come back ... I can help with submitting copies of the reports/prints to my police contacts to try and help speed up the process a bit, but I am pushed for time (single post) to prepare them, etc.  It helps greatly if you could send me the French translation but you will need to discussion other arrangements for further submissions with [blank] and the FCO/Embassy.  Sorry I cannot help more, I hope you understand." 
 
33.9.  By 14 September 2010, the Moroccan authorities had responded that the fingerprints for one person (not the claimant) were, "No trace in the national archives".  This information is in an e‑mail from John.  It is not clear how the authorities (according to John's email, the National Police) have so responded.   
33.10. In September 2010, a Note Verbale was sent to the Moroccan Embassy in London, chasing the results on the other four people (including the claimant).  There has been no response to this, which is perhaps unsurprising, given the last paragraph of John's e‑mail on 26 April 2010 to the effect that the request of the Moroccan Embassies and EU countries have, "never produced results". 
33.11.  On 1 October 2010, Mr Coy provided a briefing note to Baroness Neville‑Jones in relation to a proposed Memoranda of Understanding (MOU) with Morocco.  In this, he said: 
"At present, fingerprints of suspected Moroccan nationals are forwarded to the Moroccan Government on a goodwill basis.  It would be of great benefit to the UK and Moroccan Governments if the submission of these fingerprints were put on a more formal footing".
33.12.  On 3 December 2010, John sent an e‑mail to Mr Coy as follows:
"I am still not getting anywhere.  There is a blockage.  I know this because the fingerprints of one of the subjects submitted was identified when I was with my contact ... we are sure some of the prints will take a long time to match up.  We have not had a reply re: the above positive one.  Why, I cannot say.  This is an ideal subject/area to be included with the planned MOUs, etc, currently being talked about between FCO, HO and Morocco.  Please liaise with the HOT ... also write to Laura requesting that can we send a note to the MFA chasing up the results .."
33.12.  This is some evidence, though not robust, that one of the four ‑‑ though who it is is not apparent ‑‑ had a match positive with the Moroccan database. 
33.13.   On 3 December, 2010 Mr Coy wrote to Laura who has a Foreign Office e‑mail address:
"It would be useful if you could submit a fresh Note Verbale concerning these submissions.  I will give you a brief history: I am part of the criminal case Directive at the UKBA.  We are tasked to investigate true nationality and identity of those foreign national prisoners who, because of their conviction, are subject to deportation orders, but in an effort to avoid deportation, hide their true identity and nationality.  John [blank] very kindly revealed to us that all Moroccan nationals who wish to be issued a national identity card are fingerprinted from the age 16.  The Moroccan Government hold some 23 million of these fingerprints.  There is obviously no better source of identity and nationality than a positive search of a nationality fingerprint bank.  We therefore submitted through John on 2 July 2010 as a trial initiative five sets of fingerprints of those subjects we suspected of being Moroccan.  Each set was accompanied with a brief interpreted letter (these are attached).  On 14 September 2010, the National Police (DGSN) replied that fingerprints [blank] were not traced in the national archives.  Officially, we have received no other results.  We know through John, and a knowledgeable source, that there has been at least one positive result.  I would suspect that there are others." 
33.14.  On 16 December 2010, Mr Coy sent a further e‑mail to Laura:
"The e‑mail chain as below sets out our short‑term problem.  We just need the results released to us.  If you could do a Note Verbale regarding these four outstanding submissions, this would greatly assist.  As discussed (and revealed by John) it is highly probable that we have four positive sets of prints that will allow removal." 
It is not clear why Mr Coy's suspicion that there were other positive results (e‑mail 3 December 2010) had become a high probability that there were four positive sets that would allow removal.  His witness statement does not address these e‑mails nor this point. 
33.15.  In a letter to the claimant's solicitors responding to their original claim, the defendant wrote this in December 2010:
"On 14 September 2010, the National Police (DGSN) replied that the fingerprints of one case sent were not traced in the national archives.  Officially we have received no other results.  We know there has been at least one positive result and it is suspected that there are others.  However, we are currently working on a Formal Memoranda of Understanding regarding the submission of fingerprints and are unable to exert any pressure.  In summary, we have not received either a negative or a positive response from the DGSM if your client's fingerprints are matched with those in the fingerprint bank." 
33.16.  Mr Coy's recent statement, after dealing with the briefing note of October 2010, continues:
"(9) There followed further correspondence between myself and the British Embassy in Rabat regarding the obtaining of the outstanding results from the Moroccan authorities. 
"(10) On 1 February 2011, these discussions came to a temporary halt when others within UKBA thought that these negotiations were contrary to stalled EU discussions. 
"(11)  On 26 April 2011, legal opinion was obtained as our submission of fingerprints to the Moroccan authorities, as described, did not contravene new EU discussions ‑‑ 
"(12)  Therefore, on 4 May 2011, I resumed my negotiations with the Foreign and Commonwealth Office regarding the UK Border Agency obtaining the four remaining fingerprints from Moroccan authorities.  This has resulted in a Note Verbale being submitted to the Moroccan Embassy in London on the same date." 
 
I am not aware of any correspondence, since the e‑mails in December, to which I have referred, until the Note Verbale to the Moroccan Embassy recently requesting the cooperation of the Moroccan authorities in verifying the nationalities of the four outstanding sets of fingerprints which include the claimant's. 
33.17.  Finally, the April 2011 detention review mentions that enquiries have been made of the agents of the ship on which the claimant was found as a stowaway when he first came to the UK in August 2003.  They have agreed to check their files.  I do not regard this as having any realistic prospect of leading to the claimant's deportation.  In this regard, the claimant's own statement says:
"(13) I have just received on 5 May 2010, a monthly progress report dated 28 April 2011.  It says the UKBA have just contacted the agents of the ship I arrived in.  They have always known that I came on a ship from Morocco.  I not know why they did not contact them before now and not until just before my last hearing.  In any event, I cannot think of any information the shipowners would be able to provide.  The shipowners were Russian and therefore I could not communicate with them.  They know nothing about me.  I was a stowaway on the ship.  All I can imagine they could say is where the boat left from which is already known and what I looked like." 
But, in addition, the defendant's own internal detention review of 27 April 2011 says:
"As Mr Mjemer was found aboard a ship as a stowaway when he entered the United Kingdom, I have contacted the ship's agents, OBC Shipping in Felixstowe, for assistance with this case.  I have spoken with the manager there and he has agreed to assist me.  However, as the ship entered on 15 August 2003, it is likely that their file has been destroyed.  However, the manager has taken my details and will be getting back to me shortly with further information." 
34.1 From the above exposition I make the following findings in relation to: a) whether, and if so, there is a realistic prospect that the deportation will take place within a reasonable time; b) the obstacles which stand in the defendant's path prevents a deportation; c) the diligence, speed and effectiveness of the steps taken by the defendant to surmount their obstacles, 
(1) there is no realistic prospect that deportation will take place within any timeframe; 
(2) the following what was agreed with the defendant's counsel as a fair synopsis; 
(i) the Moroccan authorities have a manual bank of fingerprints; 
(ii) in early July 2010, the defendant provided the Moroccan authorities with five sets of fingerprints, one set being from the claimant;   
(iii)  the Moroccans responded in September 2010 that one set was negative; 
(iv)  there is weak evidence that the Moroccans have completed tests on others and that one (unidentified) is positive.  This was in early December 2010, ie five months ago; 
(v)  the defendant has chased the Moroccans in September 2010 and early this month; 
(vi)  there is no evidence whether direct or indirect that the Moroccan authorities will respond in any timeframe, or at all, in relation to the other four sets of fingerprints, including the claimant. 
34.2.  It is right to add that the Moroccan authorities have had, since July 2010, everything that the defendant can provide.  Nothing new has been or can be sent.  There is no information as to any positive outcome on an MOU with Morocco.  Indeed, in the e‑mail dated 11 March 2011, Mr Coy wrote:
"This is not a missive about proposed MOU (or agreement) that is on hold whilst it rattles through UKBA bureaucracy."  
The reality is that there has been a nil response for 10 months from Morocco in relation to this claimant and all others, apart from the one negative match reported in September 2010.
34.3.  For all those reasons, I have determined that there is not a realistic prospect that deportation will take place within any known timeframe, if at all.  If it does occur, it will take at the very least many months, especially as, even if there was a positive match for the claimant, there would then have to be an ETD procedure to be gone through. 
34.4.  As Lord Dyson made clear in Walumba Lumba, if there is no realistic prospect that deportation would take place within a reasonable time, then continued detention is unlawful.  I will now deal with the circumstances governing what is a reasonable time. 
35.  As to the conditions in which the claimant is being kept, he is and has been in prison since December 2007.  I have already read out part of his statement which give more details of conditions (see paragraph 14). 
36.  The effect on the claimant has been subject to a psychiatric report by Dr Basu, dated 30 April 2011.  In summary, this states:   
(1)  The claimant has an emotionally unstable personality disorder.  His detention has not caused this disorder but it has exacerbated it.  
(2)  There is no evidence to suggest that the claimant's mental health was of sufficient concern prior to his detention that he required any medical management.  Since his detention, he has suffered from depression, reports symptoms consistent with panic attacks and his behaviour has been disruptive towards others and himself (self‑harm and suicide attempts).   
(3) It is crucial that the risk he poses to himself is not overlooked.  His self‑harm and two suicide attempts were significant acts.   
(4)  The longer he is detained, the more his mental health is likely to deteriorate.  
37.  Next I deal with the risk that if he is released, he will commit further criminal offences.  The defendant submits that the claimant's criminal record and his aggressive and abusive conduct whilst in detention and his proven adjudications lead to an assessment that in spite of the resumption in favour of release, should the claimant be released, there is a significant risk of serious re‑offending on the part of the claimant who poses, in addition, a serious risk to the public and to women in particular.  The claimant points out that in repeated detention reviews, it has been noted by the defendant that the claimant's "criminal convictions do not, in themselves, indicate that his release would pose a risk of harm to the public".  They rely on his "violent and destructive" behaviour in prison.  In addition, Dr Basu makes the following comments, in paragraphs 123 to 127 of his report, and also paragraphs 129 and 130:
"123.  In my opinion, the major component of the risk that Mr Mjemer poses to others is in association with his impulsivity and his reaction to situations in which he feels threatened or unfairly treated.  These situations are likely to result in significant verbal abuse and threats of violence.  The evidence relating back to his interpersonal violence resulting in injury, however, is less convincing, according to the information I have before me.  Although Mr Mjemer reported the ability to manipulate his relationship with a member of staff that was on his suicide watch, this report was in the context of harming himself rather than others.  
"124. His risk to women, although mentioned in various documents I have had access to, appears to have arisen out of one incident that did not result in any injury and did not result in an adjudication which specifies any risk to women.  The incident in June 2010 in which he is reported to have threatened a female officer by saying he would "fill her in" postdates the advice that was given in March 2009 for female presenting officers not to see Mr Mjemer alone.  The details of the incident that led to this advice is not clear.  In the absence of any further information, I have no reason to believe that Mr Mjemer poses any greater risk to women than he does to men, ie, similar to a previous incident, it appears that he has been verbally abusive and threatening to both male and female prison staff alike.  I have no information regarding the alleged hostage taken and rape in prison.  I have no reason to believe that he presents a risk to children. 

"125.  In conclusion, given his behaviour both in the community as well as in detention and considering the HCR‑20 assessment, I am of the opinion that Mr Mjemer presents a moderate risk of inter‑personal violence whilst detained.  This conclusion is based upon a number of historical factors within the HCR‑20 that elevates his risk, aspects of his personality as well as his history of detention.  It should also be noted that this "moderate" risk of inter‑personal violence is one that is based upon the HCR‑20 definition of violence, ie, actual, attempted or threatened harm to others.  In my opinion, Mr Mjemer's main risk is to threaten harm to others rather than actual harm (although his three adjudications for actual harm cannot be dismissed).
"126.  Within the community, I believe Mr Mjemer poses a low to moderate risk of interpersonal violence, (again using HCR‑20 definitions) mainly to the public who he might have confrontations with as opposed to known individuals.  I have no evidence‑based reason to conclude that his risk to women is specifically any higher than his risk to men, based on the information available to me.  Historical evidence would suggest that he may pose a danger to public indirectly, through reckless driving, although this risk has, in my opinion, been reduced by his participation in courses aimed at addressing the use of drugs and alcohol and the reduction of risk is further supported by his current attitudes towards drugs and alcohol. 
"127.  His risk of future offending, given the number of previous offences and convictions he is reported to have amassed must statistically be considered to be moderate.  However, it is important to note that the nature of these offences are not highly likely to involve interpersonal violence.  
... 

"129.  In my opinion, previous risk assessment such as that contained in source 11, ie his 'willingness to resort to violent behaviour, constitutes a clear risk of public harm and, as a repeat offender, the likelihood that he might re‑offend if released is high', conflate a number of separate issues ‑‑ risk of violence in prison estate, his lowered risk of violence in the community and his risk of reconviction (for any offence) is blurred with the implied dangerousness of such offending.  Probation services therefore clearly distinguished between an individual risk to the public, to known individuals, to children and to staff in the prison estate.  Probation services also differentiate between an individual statistical risk of reconviction and their dangerousness (which is dependent upon the type of offence they are likely to commit if released).  I have outlined my opinion above using a similar system.
"130.  My risk assessment as detailed above would support a move for Mr Mjemer from the prison estate to an immigration detention centre.  Despite posing a moderate risk (rather than a high risk) of harm to other staff in the prison estate (which continues to diminish the longer Mr Mjemer remains adjuication free), in my opinion, he would pose a lower risk of harm to staff in conditions of an immigration removal centre.  As is often the case based on my experience of Broadmoor Hospital, individuals who feel consistently "wronged by the system" become increasingly frustrated the longer they are kept in conditions that they believe to be unjust.  Mr Mjemer believes that it is unjust for him to be kept in prison and wishes to be moved to immigration detention if he is to be detained at all.  Such individuals may then become more verbally abusive and frustrated, thus increasing their perceived risk and decreasing their chances of removal to conditions of lesser security.  One way of breaking the cycle is to use the strategy of positive risk management in which, in this case, is to take the view that Mr Mjemer's frustration may well diminish if he is transferred to an immigration detention centre for reasons noted above.  I understand that should Mr Mjemer continue to pose a significant risk in an immigration detention centre, the option of transferring him back to the prison system remains open." 

It should be pointed out that although Dr Basu did not have access to all documents, Miss Lambert accepts that he had access to everything material to the assessment of risk which has been available to the defendant and to this court.  I take on board also the fact that, since February 2010, there has been only one criminal adjudication, on 1 June 2010, for threatening, abusive or insulting words or behaviour.  That date in February 2010 is significant for two reasons: 
1.  Since then he has been in Wandsworth Prison.  Prior to then, he had been moved no fewer than 26 times between 14 prisons.  He has therefore, since February 2010, had some stability for first time.  
2.  He has had counselling for two periods, February to April 2010 and October 2010 to January 2011.  I have come to the conclusion that Dr Basu is probably correct in his assessment.  In the community, the claimant would pose a low to moderate risk of violence.  His risk of offending is moderate, although the nature of these offences is not highly likely to involve violence to people.
38.  Finally, I will deal risk that, if released, the claimant will abscond.  The defendant relies on a) the claimant's noncompliance with the court in the past (see paragraph 85), b) the fact that the claimant has actively sought to frustrate the defendant's efforts to discover his true identity so as to enable the claimant's removal, and c) the inference to be drawn that there is a risk of absconding from the claimant's refusal to coorporate or removed voluntarily. 
The claimant's statement at paragraph 4, which I have already read, says he will keep to all conditions that are set.  Further, Dr Basu says in this regard: 
"128.  Statistically, Mr Mjemer's risk of absconding must also be considered to be low to moderate.  In fact, the increased risk of his absconding include his significant history of not complying with bail requirements.  His previous history before arriving in the UK also suggests that he previously attempted to travel elsewhere in an attempt to find a "better life".  In his favour however, is the fact that his attitudes are now more mature and he realises that absconding again will not further his goals to establish himself somewhere with legal status.  He is now hopeful that this might not be be possible".

I have to state that I am not totally persuaded by this.  I believe there is at least a moderate risk that the claimant will abscond.  Indeed, I believe it is a moderate to high risk.  I note in this regard that the defendant believes that the claimant has previously breached a tagging order.  This was something that was disputed in an application for an interim release before Mr Justice Blair last month.  Miss Lambert has caused enquiries to be made and accepts that the defendant cannot prove that the claimant has previously breached a tagging order. 
39.  I have to make a judgment taking into account all the above factors.  I have weighed my assessment of the risk of re‑offending and absconding in the balance, but conclude that the risks are not such that detention can be justified, taking into account the extremely lengthy period of detention, lack of any realistic prospect and whether and if so, when, the claimant may be deported and looking also the effects of the detention on the claimant.  Therefore, I judge that his continued detention is unlawful.  
40.  I am asked to rule that prior detention has been unlawful from one of three possible dates: 
1.  April 2010, ie four months after the claimant stopped giving alternative versions of his origins and set out his stall that he came from Western Sahara.  I reject that date.  In April 2010, there was a realistic prospect in the optimism of the initial e‑mail that the Moroccans would cooperate. 
2.  September 2010, ie from when the first negative result came in.  I reject that date because the timeframe was known to be potentially lengthy and one result had been forthcoming and a chaser was sent.  
3.  December 2010, when it was reported that the Moroccan authorities were stalling and three months had passed from the date of the chasing.  I do not accept that date either, but I do find that once the trail had been cold and absolutely nothing was forthcoming by early January, that the prospects of cooperation were so slim as not to be realistic.  This fact, weighed in the balance with all the other factors, lead me to the conclusion that detention became unlawful some four months ago. 
41.  Summary.  The claimant's continuing detention is unlawful and has been for some four months.  In those circumstances, I invite submissions as to the form of the order to be drawn up.

MR CHIROCO:  My Lord, I am very grateful.
We had a discussion about the conditions of the release.  What the Secretary of State asks for, and what the claimant agrees to, is twice weekly reporting conditions.  Conditions of residence at an address which is provided by the defendant, which is 170 High Street (Inaudible) Middlesex and that the claimant be tagged.
The normal order is that the release should take place within 48 hours when the defendant is set up for tagging.
THE DEPUTY JUDGE:  Do you want a few minutes to draw up some proposed draft order? 
MR CHIROCO:  My Lord, yes, I would be grateful.  The other consequential requests are the detailed assessment of the claimant's publicly funded costs and that the defendant pay the defendant's costs.
THE DEPUTY JUDGE:  Well, I will see whatenever draft you put before me shortly.  How long, assuming the damages matter does not settle, how long would the hearing take?
MR CHIROCO:  My learned friend's saying a half a day.  I was going to say slightly less.  My Lord, if, as we discussed on the last occasion, it comes before your Lordship, we will save a lot of time.
THE DEPUTY JUDGE:  Well that may depend on the length.
MR CHIROCO:  My Lord, I was going to suggest maybe 2 hours, in which case, maybe it is best to say half a day.
MISS LAMBERT:  I was simply giving time for judgment to be given at the same time, as opposed to reserved.
THE DEPUTY JUDGE:  It will have to be, if it is before me, it will have to be Tuesday or Wednesday of week ending October.
MR CHIROCO:  Of October.
THE DEPUTY JUDGE:  Yes.  It is not suitable for vacation business.
MR CHIROCO:  My Lord, maybe we could discuss that. 
THE DEPUTY JUDGE:  Yes.  Was there anything else you wished to mention? 
MISS LAMBERT:  No, my Lord.  
THE DEPUTY JUDGE:  I am just concerned at one point that I thought you may have thought I had made a factual error.
MISS LAMBERT:  No, we did sort that out, you were entirely correct, my Lord.  We both thought that there was an error, but, in fact, you are correct and will not trouble you with it.
MR CHIROCO:  There was an exchange of notes and we decided you were right, my Lord.  
THE DEPUTY JUDGE:  Was this about the e‑mail in April 2010, about it going to the embassy? 
MISS LAMBERT:  It was whether or not the Note Verbale had been submitted to the Moroccan Embassy or to the Moroccan authorities in Morocco, and you were quite correct in saying it was the Moroccan Embassy in London.
THE DEPUTY JUDGE:  That is what I thought.  I did check that, yes, but I saw the consternation cross your face.
MR CHIROCO:  My Lord, the other thing that occurred to me was this: in your paragraph, I think it was paragraph 15, subparagraphs 8 and 10, there were references to names of other detainees.  I wonder if those ought to be replaced by initials?  There is one particular person referred to by his surname and ‑‑ whether the defendant would have objection to that ‑‑ 
THE DEPUTY JUDGE:  Sorry, which paragraph was that?  
MR CHIROCO:  You read from the claimant's statement and he refers to a convicted prisoner with whom he had been in a cell and also to someone ‑‑ the name of a person he had a fight with.  I wonder whether your Lordship might simply use the initials rather than the full name.  
THE DEPUTY JUDGE:  I think that is probably sensible, it does not matter, there is no public interest.
MR CHIROCO:  My Lord, no, unless my learned friend has an objection to that? 
MISS LAMBERT:  We have no objections, my Lord.
THE DEPUTY JUDGE:  Okay, well I will be in my room.
MR CHIROCO:  I expect we will be about 10 minutes, maximum, maybe less.
(3.43 pm) 
(A short adjournment)
(4.12 pm) 
THE DEPUTY JUDGE:  The date I was thinking of was more or less precisely four months.
MR CHIROCO:  Yes, 12 January.
THE DEPUTY JUDGE:  12 January.
In terms of the reserved date, have you put in the OH2 hours? 
MR CHIROCO:  Yes.
THE DEPUTY JUDGE:  I think both sides need to serve a brief skeleton by whatever the date is, 7 days before.
MR CHIROCO:  Yes.
THE DEPUTY JUDGE:  I am sorry, I don't have my diary with me. I did give you the agreed time here. 
MR CHIROCO:  Unfortunately, we have all written different things down.  I think it was the Tuesday or Wednesday of ‑‑ two people have written down the week beginning 31 October, which would take it to 2 November, the Wednesday.
THE DEPUTY JUDGE:  Is there a calendar?  It says week beginning 31st.  Shall we say 1 November?
MR CHIROCO:  My Lord, my learned friend would find the 2nd easier.
MISS LAMBERT:  If possible, my Lord.
THE DEPUTY JUDGE:  Yes.
Wednesday 2 November 2011, each side to file and serve a skeleton argument no later than 4 pm.  We will say Thursday 27th, that is 7 October 2011.  Right.
MR CHIROCO:  My Lord, could you just read back what we wrote for costs? 
THE DEPUTY JUDGE:  Yes: 
"Defendant pay the claimant reasonable costs.  The judicial review proceedings to be assessed if not agreed.  Detailed assessment of the claimant's publicly funded costs.
MR CHIROCO:  My Lord, the only thing about the judicial review: are you sitting as an Administrative Court Judge? 
THE DEPUTY JUDGE:  I am sitting in the Admin Court.
MR CHIROCO:  If we return on 2 November, it would still be there.  Maybe it should read, "In the judicial review proceedings to date".  I think the defendant probably does not want to agree to paying our costs, respectively, for a hearing‑‑  
THE DEPUTY JUDGE:  Okay.
MR CHIROCO:  Up to and including today's ‑‑  
THE DEPUTY JUDGE:  When these bundles go back to your solicitors, can they be kept so that I can call on them if I need to when I am revising the transcripts?  I have kept the skeletons and the e‑mails and obviously my notes, but some of the references were to documents in these bundles.  It is just possible I might need to ask for a few of them to be faxed or scanned up or something if think there is something wrong with the record.
MR CHIROCO:  My Lord, could I also just thank you for listing this at my convenience this afternoon?  It is very nice to be present for the judgment, I am grateful for that.
THE DEPUTY JUDGE:  Obviously, if I can, I will.
(4.19 pm)