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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shafiq-Ur-Rehman, R (on the application of) v Secretary of State of the Home Department [2013] EWHC 1280 (Admin) (17 May 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1280.html Cite as: [2013] EWHC 1280 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/05/2013

Nicholas Paines QC :

Introduction

1. The claimant, who is a citizen of Pakistan, came to this country in 1992 (according to him) or (according to the Secretary of State) on 27 January 1996 when he was detected entering with a false United Kingdom passport in the name of Khalid Saif Ur Rehman. On 1 February 1996 he claimed asylum on the ground of a fear of persecution owing to his membership of the Kashmir Freedom Movement, but the claim was rejected and his appeal dismissed; permission to appeal to the Immigration Appeal Tribunal was refused in January 1998. The claimant appears initially to have continued to comply with reporting conditions imposed as a condition of temporary admission, but ceased to do so and the immigration service lost contact with him; he was noted as an absconder in August 1999.
2. The claimant came to the attention of the authorities again when he was charged and on 3 August 2007 convicted, apparently under the name Khalid Saif-ur Rehman, of using a false passport in an attempt to obtain a National Insurance number. He was sentenced to seven months' imprisonment and the court recommended his deportation. In October 2007, when his release from imprisonment under the criminal sentence was imminent, he was served with notice of the Secretary of State's intention to make a deportation order, against which he appealed unsuccessfully. He was transferred to immigration detention with effect from 1 November 2007, the first of 8 bail applications that he subsequently made being refused by an immigration judge on 15 November. He remained in detention until 8 September 2011, when he was released by the Secretary of State subject to reporting conditions and electronic tagging. He was eventually removed to Pakistan on 27 November 2012.
3. The present proceedings, the third set of judicial review proceedings that he has sought to bring, were commenced by a notice of application for judicial review in May 2010; the claimant, named as Sharfiq Rehman on the claim form, sought permission to challenge his (then continuing) detention and an interim order for his release, both of which were refused by Owen J on 12 July 2010. The application was not renewed at that stage but, for reasons that are not entirely clear, a hearing was listed in this court in December 2010 which was treated as an oral renewal of the application for permission. Permission was granted by Wilkie J but interim relief was refused; directions were given for further evidence of the then current circumstances. Given the claimant's subsequent release from detention and his later removal, the issue before me is limited to the lawfulness of the claimant's past detention and the quantum of any damages. I have concluded that the claimant's detention has not been unlawful.

The issues

4. The issues are Hardial Singh issues (R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704). Mr Rashid Ahmed, who now appears for the claimant, realistically accepts that his client's detention was initially compatible with the Hardial Singh principles; he showed me the minute of the decision to detain the claimant, in which the claimant was said to be using the name Sharfiq Rehman. The minute also recorded the claimant's past non-compliance with immigration control, his lack of ties with or close relatives in the UK or compassionate factors and his previous absconding; it was noted that, whilst the claimant had no travel document, there was a copy of his birth certificate on file and it was anticipated that an emergency travel document should be available within a reasonable period of time. Mr Ahmed also accepted that the detention remained lawful during the period up to January 2009 in which the claimant was not co-operating in the making of arrangements for his removal in that he was refusing to complete an application to the Pakistan High Commission for an emergency travel document ('ETD').
5. Mr Ahmed contends that the claimant's detention became incompatible with the Hardial Singh principles in the period after the claimant began to co-operate in the ETD application process in January 2009, or alternatively in the period following August 2010 when a mistake over the claimant's name was cleared up. He contends for unlawfulness after August 2010 with more confidence than unlawfulness after January 2009, confining himself to a submission that it was arguable that it became apparent, at a point in time between January 2009 and August 2010, that the Secretary of State would not be able to obtain an ETD, and thus to deport the claimant, within a reasonable period. Mr Ahmed relies on three events in 2009 and 2010: first, the claimant agreed to complete the ETD application form, having initially repeated his previous refusals, at an interview with an immigration officer on 22 January 2009. Secondly, on 6 May 2009, following an interview of the claimant by an official of the Pakistan High Commission, the official indicated that he was satisfied that the claimant was Pakistani though not satisfied of his identity, with the result that the application would be sent to Pakistan for verification. Thirdly, in August 2010 it was learnt from notes of a police interview of a cousin of the claimant, who had offered himself as a surety for bail, that the claimant's correct name was Shafiq Ur Rehman (not Sharfiq Rehman as recorded in the detention minute).
6. Mr Ahmed submitted, on the basis of the claimant's detention reviews and the chronology of events, that it was apparent from January/February 2009 onwards that the claimant was co-operating, that it was apparent from May 2009 onwards that the Pakistani authorities accepted his Pakistani nationality and only needed to confirm his identity, and that it was apparent from August 2010 onwards that the Secretary of State now had his correct name; nevertheless the Pakistani authorities were struggling to confirm his identity – witnessed by the fact that it was not until November 2012 that they were prepared to issue an ETD – and it had become apparent that they would not succeed in doing so within a period for which it was reasonable to detain the claimant. He drew my attention to the fact that an earthquake in 2005 in the claimant's home region of Pakistan had caused widespread destruction of buildings and dispersion of the population. This he said, coupled with the fact that the claimant had left Pakistan at latest in 1996, more than a decade earlier, could well explain the authorities' inability, despite the UKBA pressing the Pakistan High Commission and even involving the Foreign and Commonwealth Office to track down relatives of the claimant in Pakistan or verify his identity.
7. Mr Ahmed showed me the claimant's detention reports from August 2010 until January 2011 and also passages in a witness statement made in February 2011 by an UKBA officer which had been produced in compliance with a further order in the present proceedings for updated evidence of the then current circumstances. His case was that the Pakistani authorities' failure to issue an ETD made it apparent from, at least, August 2010 onwards that there was no prospect of the claimant's removal within a reasonable time, especially taking into account the length of his past detention by that stage. Mr Ahmed submitted and that the continued detention of the claimant was unreasonable and disproportionate; the Secretary of State ought to have considered temporary admission with tagging and reporting conditions much earlier than she eventually (and successfully) did, the claimant's past offence being serious but not at the level of violent, sexual or drug offending.
8. For the Secretary of State, Ms Julie Anderson submitted, in reliance on the decision of the Court of Appeal in R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, that it only becomes 'apparent' to the Secretary of State that she will not be able to effect deportation within a reasonable period if it is clear to her that that is the case; it is not sufficient that there appears to be a possibility that she will not be able to do so. In support of the contention that it was at no stage clear that deportation could not be effected within a reasonable time Ms Anderson pointed out that the Pakistani authorities never said that they were unable to issue the claimant with an ETD, as they eventually did. Moreover, in June 2010 Owen J had refused the claimant bail and permission for the present judicial review, saying "There is no real prospect of success in the application…. There remains some prospect that the claimant can be removed from the jurisdiction within a reasonable period, and the continued detention of the claimant is justified in particular by the high risk of absconding". This contemporaneous judicial assessment of the situation, she submitted, made it impossible to say that it was apparent that removal could not be effected within a reasonable period. Ms Anderson submitted that the high risk of absconding posed by the claimant was sufficient to justify his continued detention.
9. Without placing this at the forefront of her submissions Ms Anderson also suggested that the claimant, who plainly did not wish to return to Pakistan, could have done more than he did to enable himself to leave detention and return to Pakistan: for example, he could have applied for a passport rather than supplying the bare minimum of information needed to complete the ETD application form and leaving it to the Secretary of State to apply for an ETD in respect of him; a passport application by him – demonstrating a desire to be issued with a passport – coupled with a co-operative attitude would have secured his return to Pakistan much earlier than was in fact achieved. The claimant, Ms Anderson said, was in what she graphically described as a 'three-walled prison' and chose to remain in it rather than leaving by the exit that led to Pakistan.

The law

10. Before going further into the facts of the case and the rival submissions it is sensible to refer to the relevant statutory provisions and case-law discussing the Hardial Singh principles. Section 3(5) of the Immigration Act 1971 makes a person who is not a British citizen liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Section 5(1) makes provision for the making of a deportation order. In schedule 3 to the Act, paragraph 1(1) empowers the Secretary of State to give directions for the removal of a person against whom a deportation order is in force. Paragraph 2(3) provides that where a deportation order is in force a person may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom. The word "pending" has been judicially interpreted as containing the requirements both that the detention should be with a view to removal and that removal should be in prospect.
11. Mr Ahmed took me to paragraphs 7 and 8 of the judgment of Woolf J, as he then was, in Hardial Singh and to paragraphs 22, 122-123 and 128 of the judgment of Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12. He also showed me paragraph 27 of the judgment in R (Wang) v Secretary of State for the Home Department [2009] EWHC 1578 (Admin), in which Mitting J had described 30 months as "a very long time and right at the outer limit of the period of detention which can be justified under Hardial Singh principles except in the case of someone who has in the past committed very serious offences and who may go on to commit further such offences or who poses a risk to national security" and a passage in the judgment in R (A) v Secretary of State for the Home Department [2010] EWHC 808 (Admin) in which Sir Michael Harrison had found a claimant's detention unlawful when he had spent 30 months in detention and a further 18-24 months' detention was in prospect; Mr Ahmed also referred to R (Harrak) v Secretary of State for the Home Department [2010] EWHC 2621 in which King J took into account 28 months' past detention in assessing the reasonableness of a further 24 months of detention undergone after the Secretary of State had received advice that deportation could take up to 24 months.
12. In response to that, Ms Anderson showed me paragraphs 77-78 of the judgment in R (Nab) v Secretary of State for the Home Department [2010] EWHC 3137 (Admin) in which Irwin J, following Cranston J in R (Davies) v Secretary of State for the Home Department [2010] EWHC 2656 (Admin), had deprecated reference to first instance decisions because decisions on different facts were not helpful and there were risks in seeking to establish anything resembling a tariff. I respectfully agree; Lumba among other authorities stresses the fact-specific nature of cases involving the Hardial Singh principles.
13. In Hardial Singh Woolf J said:

"7. 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 that it is subject to limitations. First of all, it can only authorize 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. 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.

8. 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 will be necessary to ensure the removal of the individual within a reasonable time."

14. The principles set out by Woolf J were summarised by Lord Dyson in Lumba at paragraph 22 in four propositions, of which Mr Ahmed relies on the second and third:

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 a 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.

15. At paragraph 121, Lord Dyson said that "the risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place". Paragraphs 122-128 of his judgment deal with the topics of lack of co-operation with return and refusal to return voluntarily, the latter of which was debated in the present case. After noting that at paragraph 123 Lord Dyson added "I would warn against the danger of drawing an inference of risk of absconding in every case. It is always necessary to have regard to the history and particular circumstances of the detained person", it is sufficient to set out his conclusion on refusal to return voluntarily at paragraph 128:

"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 effected, whenever that may be. That is because otherwise, as I said at para 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 the deportation." If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R(I) and Keene LJ in R(A) and I agree with them."

16. In connection with Lord Dyson's third principle Ms Anderson took me to R (Muqtaar) v Secretary of State for the Home Department. In that case the European Court of Human Rights had given the United Kingdom a 'rule 39 indication' that the claimant, who had lodged an application to that court, should not be deported pending a relevant decision of the Human Rights Court. In the result, the court did not produce a decision until two years later. Upholding the trial judge's decision that detention had not become contrary to the third Hardial Singh principle when the rule 39 indication was received, Richards LJ (with whom the other members of the Court agreed on this point) said

"36. I see no reason for differing from the conclusion reached by the deputy judge on this issue. At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR's final decision would be such as to prevent the claimant's removal. I stress "apparent", because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain.

37. Mr Husain submitted that for continued detention to be lawful it was necessary for the Secretary of State to identify the timescale within which removal could be effected, whereas in this case the timescale was wholly uncertain. An argument along those lines was rejected in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112. I referred, at para 64 of my judgment in that case (with which the other members of the court agreed), to the approach taken by Toulson LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, to the effect that there must be a "sufficient prospect" of removal to warrant continued detention, and that what is sufficient is a question of balance in each case. I continued, at para 65:

I do not read the judgment of Mitting J in R (A) 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 established principles … 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 effected 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 reasonably be expected to occur and without any certainty that removal will occur at all. 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 …

38. Mr Husain submitted that that reasoning cannot live with the formulation of the Hardial Singh principles by the Supreme Court in the Lumba case [2012] 1 AC 245, in particular at paras 103–104 where Lord Dyson JSC said that a convenient starting point in the application of the principles to Mr Lumba's appeal was "to determine whether, and if so when, there is a realistic prospect that deportation will take place" and that "if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful", and where he went on to identify factors relevant to the question of how long it is reasonable to detain a person pending removal. There is nothing to show, however, that Lord Dyson JSC was intending to address the point made in the passage quoted above from the MH case, and there does not seem to me to be any inconsistency between his observations and that passage. I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. At the time of receipt of the rule 39 indication in the claimant's case, although it was not possible to say when the ECtHR proceedings would be concluded, there was none the less a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances. "

The documentary evidence

17. The monthly progress reports to the claimant on his detention up to the end of 2008 referred to the claimant's refusal to sign and place a thumbprint on a partially completed ETD application form, which Mr Ahmed realistically accepted amounted to a failure to co-operate. Given his acceptance that detention was lawful in that period, I do not need to consider his suggestion that fingerprints held by the police could have been used instead. The report of February 2009 referred to the claimant having very recently signed the application and placed a thumbprint; the document, which is in the papers, gave the claimant's name as Sharfiq Rehman and his address in Pakistan as 10 Alama Iqbal Road; it said the claimant could not remember his national identity card number (Mr Ahmed suggested to me that the claimant had left Pakistan before the identity card scheme was introduced). The form also said that the claimant was a Pakistani citizen by registration; the accompanying 'bio data information' gave the claimant's and his parents' places of birth as being in India and his parents' nationalities as 'India/Pakistan'; it said the claimant had no brothers or sisters.
18. The February 2009 detention report continued "we now await the outcome from the High Commission". This was repeated in March, together with a reference to a judicial review that the claimant was seeking to bring. The report of May referred to the claimant's recent travel documentation interview with the High Commission, the outcome of which was expected shortly. The witness statement prepared earlier in this litigation adds that the High Commission official who interviewed the claimant on 6 May 2009 "verbally accepted that the claimant was a Pakistani national but was not certain that the information provided revealed the claimant's true identity, and his application was referred to Pakistan for verification. The Pakistan High Commission advise that verification usually take[s] up to three months". The claimant's chronology asserts that the outcome of the verification was expected by the end of May, but I have not tracked down any source of that assertion, which is contradicted by the witness statement.
19. The June 2009 report is not in the papers but the July report referred to the interview and said "we have been informed that verification checks are ongoing with officials in Pakistan", as well as referring to a recent application by the claimant for leave to remain. The August 2009 report said that the UKBA had recently been informed that verification checks were still ongoing in Pakistan and that removal directions would be set once an ETD was available. The September, October and November reports referred to UKBA being informed that verification checks were still ongoing in Pakistan; this had happened on 9 September, 22 October and 13 November. The December report informed the claimant that "in order to try to speed up the issue of a travel document we have applied to the High Commission in London for a document and this application will run in tandem with that to the Bradford Consulate". The claimant would shortly be interviewed by a High Commission official. This was repeated in the January 2010 report.
20. The report of February 2010 indicated that an interview date was awaited from the High Commission. The April report referred to the interview having taken place on 3 March and added that "the outcome of verification checks in Pakistan is awaited. Once a travel document is made available directions will be set for your removal to Pakistan". This was repeated in May. The reports from June to August referred to the outcome of the checks being awaited 'despite regular reviews', that of August also referring to the information received as to the claimant's correct name, which had been passed on to the High Commission. The witness statement contributes the further information that interview notes received by the UKBA in August 2010 from the police interview of the claimant's cousin both corrected the claimant's name to Shafiq Ur Rehman and confirmed the claimant's parents' last known address in Pakistan.
21. The September detention report referred to the High Commission having been asked on 3 September for an update. The October report said there had been no response to that request but a further update had been requested on 8 October. Reports dated in November and December 2010 and January 2011 referred to updates being sought on 25 November 2010 and 20 January 2011, as well as to two interviews of the claimant by an immigration officer in January 2011 to discuss his identity. The witness statement explains in this connection that the purpose of the first interview was to obtain more information about the claimant's identity, given that the High Commission seemed to be finding verification very difficult; the claimant did not provide further information, saying that he had already supplied accurate information and had asked his cousin to help. The purpose of the second interview was to establish whether the claimant was the subject of another existing Home Office file in the name of Shafiq Ur Rehman. The claimant said he was not, and in February 2011 the UKBA fingerprint bureau said that a comparison of fingerprints confirmed this.
22. A further ETD application form and bio data form, dated 4 January 2011 and apparently completed at the first January interview, gave the claimant's name as Shafiq Ur Rehman and his address as 50 Mian Mohammed Road and said he was a Pakistani national by birth. The bio data form gave his parents' nationality as Pakistani and their address as being the same as that given for the claimant, adding 'believed deceased 2005' (the year of the earthquake). It also gave the names of a brother and two sisters.
23. A further update was sought in March 2011. On 19 April the UKBA were informed that the High Commission had been unable to verify the claimant's nationality or identity and had asked for the claimant's identity card or other documentary evidence that the claimant or his relatives might have and for the claimant's full and correct address in Pakistan as the address previously supplied was "either incomplete or not correct for some other reason". The claimant would shortly be interviewed by an immigration officer to discuss these matters and the claimant was urged to contact anyone who might be able to assist with documentary evidence. The May report is not in the papers but that of June refers to the claimant's 'bio data' having been sent to Pakistan on 25 May 'and verification checks are now ongoing'. This was repeated in July. There are no further monthly reports in the papers.
24. It seems probable that that the bio data form just referred to was the one dated January 2011; investigation of the possibility that the claimant was the subject of another file in the same name is likely to have delayed the sending to the High Commission of the documentation completed in January. If so, I do not know why its despatch was delayed until May; the explanation may be that dealings between UKBA's Criminal Cases Directorate and the authorities of foreign countries took place through intermediaries in the Returns Group Documentation Unit.
25. I do, however, note the inconsistencies between the application form and bio data sheets of January 2009 and January 2011: these include discrepancies as to the family's address, the claimant's place of birth, the basis of his entitlement to Pakistani nationality, the parents' nationality and the existence of siblings. Both sets of information cannot be correct and it is hard to believe the claimant thought otherwise. It also seems that the claimant's cousin confirmed the first address and the claimant subsequently gave the second address. If I am right that the second set of bio data information was only provided to the High Commission in May 2011, the correction of the address may explain why the High Commission had queried the address previously given.
26. The contemporaneous documentation in my papers ends at this point in time, but I gather from the very full and helpful chronologies provided by both counsel that on 29 July 2011 Ouseley J dismissed a further application for bail on the grounds of risk of the claimant absconding. The claimant was released by the Secretary of State in September 2011 but I know nothing about the circumstances of or reasons for that decision; Ms Anderson did not volunteer any information and Mr Ahmed did not ask. I am told in Ms Anderson's chronology that fresh fingerprints and the previously assembled bio data were re-submitted to the High Commission in April 2012; in September the High Commission said that a reference had been sent to Pakistan on the basis of the claimant's "new given name and address". Ms Anderson says that the name and address referred to were those submitted previously; it strikes me as possible that the 2011 information had for some reason not been sent on to Pakistan before then. At all events an ETD was supplied by the High Commission in October 2012 and the claimant was removed in November. Ms Anderson told me that the reason given by the Pakistani authorities was that the claimant's fingerprints had been found to correspond with those on Pakistan's national fingerprint database, though Mr Ahmed told me that that database had only been created after the claimant left Pakistan. It is not clear exactly what happened within the High Commission and in Pakistan.

My decision

27. Though Mr Ahmed relied on the second and third Hardial Singh principles, it seems to me that the third principle is the one most directly in issue. In reliance on the second principle, Mr Ahmed invited me to have regard to the length of the claimant's past detention, including the first 15 months of non-cooperation, in assessing the reasonableness of continued detention. I agree that the length of time already spent in detention by a detainee is relevant to the reasonableness of continued detention; the longer a detainee has been in detention, the harder it is to justify continued detention that will prolong it even further. Nevertheless, Hardial Singh is an area in which none of the competing factors is, in Lord Dyson's words, a 'trump card'; it cannot be said that a particular span of past detention makes continued detention unlawful if it is foreseeable that a person can be deported within a reasonable future period; it merely colours the assessment of what is a reasonable future period. The amount of colour it adds, or weight it has, is part of the overall assessment that has to be performed.
28. I therefore focus on the question posed by the third Hardial Singh principle in this case: was it apparent, on the basis of the material available to the Secretary of State, that she would not be able to deport the claimant within a reasonable period? Ms Anderson submitted, in reliance on Muqtaar, that 'apparent' here means 'clear'. To my mind, 'clear' has overtones of 'certain', and possibly over-states the degree of pessimism about prospects of removal that makes continued detention contrary to the third principle. Like the Court of Appeal in Muqtaar, I prefer to adhere to the word 'apparent'. The judgments in Hardial Singh and Lumba are an exercise in judicial interpretation of the statutory concept of detention 'pending removal'; their terms are not themselves the statutory words. There is a danger, particularly when a higher court is able to encapsulate the interpretation of statutory words in a succinct set of propositions, of lower courts slipping into the mindset of interpreting the words of the interpretation as though they were the statute; and, since interpretation involves the use of different words from the words being interpreted, there is a concomitant danger of the courts moving progressively further from the statutory words. I therefore ask myself whether at any point from January 2009 onwards the material available made it apparent (for which 'indicated' might be a synonym) that the Secretary of State would not be able to deport the claimant within a reasonable period, without mentally qualifying the expression with any adverb.
29. I do, however, direct myself that the third principle does not preclude continued detention "where the prospect of removal within a reasonable period is merely uncertain" (Muqtaar at paragraph 36) and that there "can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all", provided that there is "a sufficient prospect of removal to warrant continued detention when account is taken of all other factors" (paragraph 37, quoting R (MH) v Secretary of State for the Home Department).
30. In taking account of all the factors, I begin with the risk of absconding, to which Lord Dyson attributed 'paramount importance'. In common with Owen and Ouseley JJ, I agree that the claimant presented a high risk of absconding: he had no family, employment or other ties to a particular location within the UK, he had absconded before, his lack of co-operation with the ETD process during some 15 months of detention (if not more, depending on how one views the information given in the January 2009 ETD application) demonstrated a strong disinclination to return to Pakistan; his use of two false passports for unlawful purposes on two occasions demonstrated a preparedness to break the law. I accept that he subsequently complied with conditions of temporary release, but I do not consider that that was the foreseeable consequence of releasing him.
31. The second factor I take into account is the length of the claimant's past detention: by January 2009 it was 15 months; by May 2011 it had reached some 3½ years. Prolongation of an already considerable period of past detention is a factor weighing against continued detention, but is a factor of reduced weight in respect of past detention that the claimant had brought upon himself by refusing to complete the ETD paperwork. Little weight is in my judgment to be given, as regards continued detention beyond January 2009, to the period of detention before it.
32. I also take into account Mr Ahmed's observations about the claimant's criminal offence. I accept that he was not a danger to members of the public but I regard that as the absence of an aggravating factor rather than a factor militating in favour of release; the claimant was an illegal entrant as well as a convicted criminal and I do not consider that the case for his continued detention would have been weaker if he had not committed the offence.
33. I now turn to the prospects of removal. The fact of the claimant's co-operation in January 2009 could not of itself make his continued detention unlawful; on the face it, it increased those prospects. Mr Ahmed's case is necessarily based on its failure to produce an ETD. Clearly, a period was required to elapse before it could begin to be suggested that that failure made it apparent that sufficiently swift removal was not in prospect. The documents show that it brought about an interview with the High Commission in May 2009 leading to verification checks in Pakistan; given the evidence that these checks normally take three months, it would have been premature to draw a conclusion of failure within the three months, or even immediately after. Through the remainder of 2009 the UKBA was receiving reports that verification checks were still ongoing in Pakistan, not – as Ms Anderson pointed out – that the verification had failed. Given the likelihood that the claimant's release from detention would frustrate his deportation I consider that the prospects of his removal, though uncertain, were sufficiently strong to justify his continued detention.
34. In late 2009 the decision was taken to make a further ETD application to the High Commission in London. The UKBA must have thought that that increased the prospects of obtaining an ETD, and I have no reason to doubt their judgment. Again, a period needed to elapse before it could be concluded that there was no prospect of that application succeeding. It brought about an interview of the claimant by the High Commission in March 2010, leading to further verification checks in Pakistan. In August 2010 came the information that the claimant's name had been given incorrectly on the application form – not only was his first name misspelled but his middle name omitted. It was reasonable to wait to see if enquiries under the apparently correct name bore fruit.
35. There does appear to have been silence from the High Commission in late 2010, but the fact of the first January 2011 interview indicates that UKBA considered that insufficient information had been provided to the Pakistani authorities. I do not consider that it was then apparent that an ETD could not be obtained with greater co-operation from the claimant. Once the January 2011 ETD application papers were completed, it became apparent that the claimant had given incorrect and/or incomplete information in the January 2009 paperwork, hampering the chances of the previous applications producing an ETD.
36. It was, in consequence, apparent that the claimant had also brought his period of detention since January 2009 upon himself by giving information that was unlikely to succeed in producing an ETD. Little weight needed to be given to the past periods of detention in the light of that. I take into account the fact that the January 2011 paperwork did not produce an ETD until late 2012, and that there may have been delays in its transmission between the UKBA and the High Commission and/or between the High Commission and the officials in Pakistan. But, given the claimant's release in September 2011, the period I am now considering is that from January to September of that year. I do not consider that it was apparent by September 2011 that the new information would not produce an ETD within a reasonable further period. I do not need to decide whether that became apparent subsequently; but the further dealings between UKBA and the High Commission suggest otherwise.
37. It follows in my judgment that neither the second nor the third Hardial Singh principle was infringed during the claimant's period of detention; consequently I must dismiss this claim.