Travel Document Project
Case law relevant to travel document issues
SUMMARY OF CASE LAW
With thanks to Umar Azmeh of Garden Court Chambers. Links to judgments on BAILLI are shown where available.
Whether or not detention of the claimant was unlawful due in part to the conditions imposed on obtaining travel documentation by the prospective country of return, and in part by non-cooperation.
The claimant arrived in the United Kingdom in 2002 from Sudan to join his mother who was a refugee at the time. The Sudanese authorities were doubtful that he was indeed Sudanese but as far as the United Kingdom authorities were concerned, he was and remained a Sudanese national. He was convicted in 2002 of attempted robbery and sentence to 2 years’ detention, and in 2006 of possession of an offensive weapon and sentenced to 4 months’ detention. His release was due in late February 2007 but his detention continued in immigration detention. On 4th February 2007 he was served with a notice of intention to deport him to Sudan. At the time of judgment, the claimant had been in deportation custody for almost 3 years. His appeal rights against the deportation became exhausted on 30th January 2008.
Lord Carlile of Berriew QC held that although the defendant faced many administrative difficulties and that they may have been an element of non-cooperation resulting in the non-removal of the claimant and thus his continuing detention, the defendant nonetheless failed on the Hardial Singh principles, which apply to all cases of detention pending removal.
R (on the application of Feridon Rostami) v SSHD [2009] EWHC 2094 (QBD)
The extent to which an applicant’s non-cooperation in the procurement of an emergency travel documentation to secure removal can be held against a claimant to keep him detained pending deportation.
The claimant arrived in the United Kingdom in 2005 and claimed asylum on his day of arrival. The defendant refused his claim later in 2005 and the claimant’s appeal rights were eventually exhausted in December 2008. He did not co-operate with the removal process and it was conceded by the defendant in 2007 that the prospects of removal were dependent upon ‘future cooperation’ with the documentation process. All the while the claimant was either imprisoned or in immigration detention purportedly ‘pending removal’.
Foskett J conceded that the evidence of the case over 33 months suggested that there was no prospect whatsoever of the claimant having a change of heart with regard to cooperation with the immigration authorities, despite two spells in prison as a consequence of non-cooperation. His lordship concluded that the claimant had a firmly settled intention not to return to Iran and that the claimant would do nothing to facilitate any process by which that return would be achieved.
It was made clear that the principles on lawfulness of detention in Hardial Singh still apply, notwithstanding that the claimant was the one frustrating the immigration process. There was in this case, no basis for thinking that he would have represented a threat to the public by commission of serious criminal offences. Although it was impossible to say that there was no risk of him absconding, this could not override the consideration that his period in detention was too long.
Concerning the wilful ignoring of the immigration status of a claimant on the part of the defendant
The claimant, originally from Somalia but a naturalised Dutch citizen prior to entering the United Kingdom in 2000/2001, was imprisoned for common assault and breaching a restraining order in 2006. He was due to be released on 8th August 2006 but was detained in custody until 15th December 2006. During the period of the claimant’s detention, he repeatedly asserted to the defendant that he was a Dutch national and that he could not be deported to Somalia but the defendant, it was found by the court, repeatedly ignored his assertions and neglected to check his documentation that was in the possession of the defendant itself. The defendant set about a process of deporting the claimant without any adequate investigation of his status and without any adequate justification according to their own guidelines. Ample records attesting to the fact that the claimant was Dutch was available to the defendant.
The claimant was awarded substantial damages (circa. £60,000) for false imprisonment and misfeasance in public office, which included a substantial award of exemplary damages.
“76. We were told, in answer to a request we made, that the successor to the Immigration Directorate, the UK Border Agency, had sought to improve its procedures by asking a foreign prisoner to provide the Agency with any documentary evidence of nationality he held, by interviewing the foreign prisoner and making enquires, if appropriate, of the foreign embassy; if the nationality remains in dispute, then the Agency sends the prisoner a nationality status questionnaire and/or conducts, with the assistance of an interpreter, a foreign language test in the language of the nationality which the prisoner claims. In all, the officials sought to determine nationality on the best evidence available. It is difficult, however, to see how these improvements have done anything to remedy the lack of competence of those who make the day to day decisions in respect of persons in the position of Mr Muuse or put in place proper systems of control and supervision over their exercise of powers to deprive persons of their liberty.”
See also letter to ILPA from Lin Homer 26 May 2010 on Muuse v SSHD,in which she notes that: “The procedures that have been implemented since 2006 are as follows:
- Nationality is determined on the best evidence available and considered on a case by case basis
- Foreign national prisoners are first asked to provide UKBA with any documentary evidence of nationality they may hold
- UKBA then interview the foreign national prisoner, and, if appropriate make enquiries with the relevant embassy
- If an emergency travel document is required, UKBA complete a travel document application form, which is then forwarded to the relevant Embassy for verification
- If the foreign national prisoner’s nationality remains in dispute UKBNA send the Foreign National Prisoner a nationality status questionnaire and/or conduct an over the telephone language test with an interpreter of the nationality the Foreign National Prisoner is claiming to be
- Quality assurance systems and ‘a second pair of eyes’ are fully embedded within the casework process in relation to the deportation and detention of foreign national prisoners.
R (on the applications of A, MA, B, and ME) v SSHD [2008] EWHC 142 (Admin)
Whether or not an action for habeas corpus exists in a case of immigration detention of a claimant pending removal where the foreign government in question is unsure as to whether the claimant is a national of that country.
Each claimant had been served with notices of intention to deport. Deportation orders had been made and all appeal rights had been exhausted. In each case neither the claimants nor the Home Office had been able to satisfy the Algerian authorities of the identity, and perhaps nationality, of each of them. The Algerian authorities had undertaken enquiries on the basis of the information supplied by the Home Office and had reported back stating that they had been unsuccessful in establishing each claimant’s identity.
Mitting J stated that it is established law that a refusal on the part of a person the subject of a deportation order to provide necessary information or to cooperate with the machinery of deportation is in itself a highly significant factor, including the level of deceit. Mitting J stated that the situation regarding lawfulness of detention was governed by two questions:
(i) By when does the SSHD expect to be able to deport the individual?
(ii) What is the basis for that expectation?
These answers to these questions were to be weighed up the risk of absconding and the commission of further criminal offences in determining whether or not detention pending deportation was lawful.
R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ. 804
The relationship between a frustration of the removal process and the period for which it is reasonable to detain an individual pending deportation.
Applying R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ. 888, active frustration of the removal process is but a factor to take into account when deciding if the detention is reasonable in all the circumstances. It again cannot be used to overstate the risk of absconding.
R v Masoud Tabnak [2007] EWCA Crim. 380
Concerning section 35 of the Asylum and Immigration (Treatment of Claimants) Act 2004 – the scope of the ‘reasonable excuse’ defence.
Following a refusal of asylum, the case concerned Tabnak’s refusal to cooperate in the procurement of travel documentation which would have allowed the UK government to deport him to Iran.
A refusal in relation to an application for asylum or leave prevents the defendant in criminal proceedings asserting that the reason they do not provide information is that they fear for their own safety in the prospective country of return.
Generally, the term ‘reasonable excuse’ in section 35 of the 2004 Act relates to the defendant’s inability to comply with the statutory obligation rather than the defendant’s unwillingness to comply.
Under certain circumstances, it is possible to envisage a situation in which a defendant would, because of apprehension for the consequences of deportation, suffer some psychiatric illness which would prevent compliance. That might be capable of constituting a reasonable excuse for unwillingness to comply with the removal process.
R (on the application of Boukhalfa) v Secretary of State for the Home Department [2003] EWHC 991 (Admin)
The view taken by the court where the authorities are confronted by a recalcitrant foreign embassy in relation to the provision of ETDs. This case is not on BAILLI.
The claimant arrived in the United Kingdom from Holland on 5 April 1996. Six days later on 11th April he was arrested on suspicion of committing the offence of driving a motor vehicle whilst under the influence of alcohol, and on the same day he was served with illegal entry papers. At that point he claimed asylum. The application was considered by the defendant in May of that year and wad rejected. His appeal rights were exhausted in February 1997 and he absconded at that point. He was arrested in November 2001 on suspicion of a drugs offence, tried at Oxford magistrates’ court, and imprisoned for 90 days with the court recommending deportation. A deportation order was signed on 17th March 2002, with the claimant administratively detained at the expiry of his sentence on 15th March 2002. From that date onwards efforts were made on the part of both the claimant and the defendant to obtain the necessary travel documents from the Algerian embassy.
At the time of the hearing in the High Court the claimant had been detained for some ten and a half months and there had been no indication or evidence as to the specific steps that were being taken by the Algerian embassy or authorities to secure any documents of facilitate the deportation of the claimant. Although the impasse was not the doing of the defendant, the Hardial Singh principles still apply and with no reasonable prospect of removal, the claimant’s continuing detention was unlawful. When it appears that removal is not a prospect, detention becomes unlawful (R (on the application of Youssef) v Secretary of State for the Home Department [2004] EWHC 1884 (QBD)).
R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ. 888
The relevance of the fact that a claimant refuses voluntary repatriation has on the application of Hardial Singh in relation to whether or not a claimant is kept in detention for a ‘reasonable period’
The mere fact (without more) that the detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable. It is a factor, but not determinative. It is accepted that if it was right to infer from the refusal of voluntary repatriation that a detained person was likely to abscond on release from detention, then the refusal was relevant to the reasonableness of the duration of detention. However, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card for the Secretary of State in very case where such a risk was made out, regardless of all other considerations.
R (on the application of Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QBD )
The limits of the power to detain pending deportation under the Immigration Act 1971
The claimant was an Indian national who entered the United Kingdom in December 1977, aged 19. He was given indefinite leave to remain but subsequently committed two burglary offences in relation to which he received terms of imprisonment. Whilst imprisoned he was informed by immigration officers that he might be deported. From the date of his release in 1983 to the court date he was kept in immigration detention as the Secretary of State in March 1983 had made a decision to make a deportation in respect of the claimant.
(i) The Immigration Act 1971, Schedule 3, can only authorise detention if the individual is being detained in one case pending the making of a deportation order, and, in the other case, pending his removal. It cannot be used for any other purpose;
(ii) As the power is given in order to enable the machinery of deportation to be carried out, the power is impliedly limited to a period which is reasonably necessary for that purpose. The period that is reasonable will depend on all the circumstances of the particular case;
(iii) 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 as provided for in the Act for removing intended deportees within a reasonable period, it would be wrong for the Secretary of State to exercise that power of detention;
(iv) The Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.