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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 >> Janha, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 3175 (Admin) (16 September 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3175.html Cite as: [2015] EWHC 3175 (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
		16 September 2015

MRS JUSTICE LANG:

1. This is a renewed application for permission to apply for judicial review following refusal on the papers. The Claimant seeks to challenge the legality of his immigration detention.
2. I begin by briefly summarising his immigration history. The Claimant's date of birth is 25 December 1973. He is a Gambian national. After entering the United Kingdom as a visitor in 2007 he overstayed. He later claimed asylum in July 2008 but did not attend for interview and the application was deemed to be withdrawn. After an abortive attempt to claim asylum in Norway he claimed asylum in the United Kingdom again in September 2011. He has been convicted of a number of drug related offences in the United Kingdom beginning in 2007, and on 11 January 2012 he was sentenced to 40 months' imprisonment for supplying drugs. The automatic deportation provisions in the UK Borders Act were triggered as a result.
3. On 9 September 2013, on the completion of his custodial sentence, he was detained in immigration detention and a deportation order was made. His claim for asylum was refused. He appealed unsuccessfully to the First-Tier Tribunal which made adverse findings as to his credibility. He was refused permission to appeal to the Upper Tribunal and became appeal rights exhausted in December 2013. His application for judicial review challenging the Upper Tribunal's refusal of permission was dismissed in July 2014 and his appeal against that decision was also refused.
4. In his grounds for judicial review, the Claimant relies on the Hardial Singh principles arguing first that it has been apparent for some time that deportation was not imminent because Gambia would not provide the Emergency Travel Documentation and so it was no longer reasonable to detain him. Secondly he submits that the Defendant has not acted with reasonable diligence and expedition and should have begun the removal process at an earlier stage.
5. Despite Mr Buley's impressive advocacy, I do not consider that the Claimant has established an arguable case on these grounds. The impediment to his removal to Gambia has been the lack of travel documentation. The Claimant apparently lost his passport some time ago. An application was made in 2014 to the Gambian Embassy for Emergency Travel Documents and the Claimant was interviewed by Gambian officials by telephone in early February 2014. However, the issue of emergency travel documents by the Gambian Embassy in London was partially suspended in about April 2014. It appears that this was because of a lack of administrative resources at the Gambian Embassy.
6. In a letter from the Defendant to the Claimant's solicitors dated 13 March 2015 it states:

"The Home Office can confirm that the Gambian Emergency Travel Document (ETD) process is partially suspended. The Gambian Embassy will accept applications for the following: those wishing to return voluntarily, revalidations of expired travel documents, and where an agreement to issue a travel document was given prior to February 2014.

The Home Office was advised at a meeting in April 2014 that the documentation process was to be paused due to a lack of staff resources within the Gambian Embassy. The Home Office is working closely with the Gambian authorities to explore a way to resolve this travel document situation.

A meeting with a Gambian Embassy took place on the 19th December 2014... At that meeting discussions took place as to how best the Home Office could address the lack of a fully functioning travel documentation process. The Ambassador advised the Home Office that a request had been made to the MFA in Banjul for additional staff for the Embassy."

7. The Defendant has been in regular contact with the Gambian authorities and has been working to resolve the difficulty. The Defendant anticipates that it will soon be resolved. The Gambian authorities have made clear that the suspension was a temporary measure and that the service would be recommenced once sufficient staff are in post. Because of the delay in resuming the full service, the Defendant took steps to persuade the Gambian authorities to treat the Claimant exceptionally as coming within one of the categories of cases that they are willing to process as set out in the letter of 13 March which I have just read out.
8. In another letter from the Defendant dated 4 June 2015 it states:

"I can confirm that your client was interviewed by officials from the Gambian Embassy on 18 May 2015, and this interview was for the purpose of securing the ETD.

I can confirm that the Gambian ETD process is still partially suspended. The Gambian Embassy will accept applications for the following: those wishing to return voluntarily, revalidations of expired travel documents and where an agreement to issue a travel document was given prior to February 2014. As your client was previously interviewed by the Gambians in February 2014, he was deemed eligible to be re-interviewed for the ETD process.

The Home Office understands that the Gambian Embassy is currently in the process of resolving the situation relating to lack of resources, but the Home Office have no further details at this time.

The Gambian officials have advised the Home Office that they need to make further enquiries as your client was not consistent with the information given. The Gambians have yet to set a date for as to when they will give a final decision on whether to issue an ETD for your client. As far as the Home Office is aware there is currently no priority list for ETD applications. I attach the documentation that was supplied by the Home Office to the Gambian Embassy prior to the interview."

9. The most recent update on the situation is in the monthly review dated 13 July 2015 which states:

"The current barrier to your removal is that the Home Office have yet to obtain an Emergency Travel Document (ETD) to facilitate your removal to the Gambia. You have recently been interviewed for a travel document, but the information you gave was not consistent, and further investigations are being made by the Gambian authorities. The Home Office are currently awaiting the decision from the Gambian authorities."

10. Despite the references to inconsistencies - I do not have details as to what those are - there is no issue on the evidence that this Claimant is not a Gambian. Fortunately, the Defendant has on file a photocopy of the passport which the Claimant lost which must be of considerable assistance both with proving his identity and his nationality to the satisfaction of the Gambian authorities. Overall, on the evidence, I considered that there is a realistic prospect of removal within a reasonable period, given that his application is now being processed actively by the Gambian authorities and there is no apparent impediment to his return.
11. It is also important to note that this suspension which has resulted in delay in the processing of emergency travel documents has only prevented forcible removal from the United Kingdom, as voluntary return remained at all times within the category of application that was being processed. The Claimant could therefore have applied for a new passport to enable him to return sooner but he has chosen not to do so, even though he has no prospect of being allowed to remain in the United Kingdom. Thus, lack of cooperation by the Claimant is a partial reason for delay in his removal.
12. Pending the final decision by the Gambians, the Claimant has been detained and not granted bail. The presumption of liberty is outweighed in his case by the significant risk of absconding and re-offending. In relation to absconding, on 3 December 2008 he was noted as an absconder after failing to comply with a requirement of weekly reporting. After arrest in 2009 and having again been ordered to report, he again failed to comply and was again recorded as an absconder on 5 August 2010. His representatives asked in June 2009 for another asylum interview to be arranged. However, the Claimant decided to leave the United Kingdom without notifying the United Kingdom authorities and applied for asylum in Norway. He was subsequently returned by the Norwegian authorities pursuant to the Dublin Convention.
13. I take into account also that the Tribunals have refused him bail on a number of occasions, finding that there was a risk of absconding. I also consider that there is a risk of re-offending and thus a danger to the public. He has been convicted of five offences in the United Kingdom, all drug related. His offending began within months of his arrival here in 2007. The most recent offence of supply is plainly considered to be serious as it attracted a lengthy sentence. His conduct also gives rise to concerns about violence towards members of the public. In the Defendant's monthly progress report of July 2015 there is listed a number of episodes of aggressive and violent behaviour by him towards staff and fellow detainees, and he made serious threats against members of the public in a telephone call to the Home Office in January 2015.
14. In the light of the risks the Claimant represents and the realistic prospect of deportation to Gambia within a reasonable period, I do not consider that the first ground has any prospect of success. The allegation that the Defendant has failed to act with diligence and expedition because, amongst other things. the Defendant should have made the deportation decision sooner and removed him sooner is, in my view, unarguable. On the facts of this case I do not consider there is sufficient evidence of lack of diligence or unreasonable delay by the Defendant to bring the case anywhere near the threshold required. The second ground therefore lacks any prospect of success. For these reasons the application for permission is refused.
15. I do not think there is an application for costs and even if there was I would not grant it. Thank you very much.