Case No: HQ15X00471
Neutral Citation Number: [2017] EWHC 1012 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 5 May 2017

Before :

JONATHAN SWIFT QC
(Sitting as a Deputy High Court Judge)

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Between :

	PRICHARD SIMUKONDA	Claimant	
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	THE HOME OFFICE	Defendant	

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Graham Denholm (instructed by Wilson Solicitors LLP) for the Claimant
William Hansen (instructed by Government Legal Department) for the Defendant

Hearing dates: 25-27 January 2017

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Judgment
Jonathan Swift QC : 
A.  	Introduction 
1.	The Claimant’s claim is a claim for unlawful detention.
2.	The Claimant was detained by the Home Secretary pursuant to her powers under Schedule 3 to the Immigration Act 1971, between 23 February 2012 and 5 December 2014.
3.	Put very shortly indeed, the reason for the extended period of detention stems from inconsistent and conflicting information the Claimant had provided about himself; about his nationality; about his personal history before he entered the United Kingdom; and about his life after he entered the United Kingdom. The Claimant asserted first that he was a Malawian national; but then that he was a Zimbabwean national. The Secretary of State made a deportation order against the Claimant in 2012. The legality of that order has not been in dispute in these proceedings. However, the Secretary of State faced significant difficulties when it came to giving effect to that order. She took the view that the Claimant was a Malawian national (as he had originally claimed to be). She then needed to provide sufficient credible information about the Claimant to the Malawian authorities to satisfy them to accept the Claimant, as a Malawian national.
B.  	Events leading to the Claimant’s detention
(1)	Claimant’s contact with UK authorities in 2007 – 2008
4.	The Claimant first came to the attention of authorities in the United Kingdom on 30 November 2007 when he was arrested for theft in Bradford. On this occasion he identified himself as Kelvin Harawa, a Malawian national. Following this arrest the Claimant was fingerprinted. The finger prints taken matched those of a Malawian national named Gift Bradley Chimera. The Claimant told the police on that occasion that Gift Bradley Chimera was a name he had used on a previous occasion; but that it was not his name; and that it was the name of his cousin.
5.	At this time the Claimant was also referred to the Immigration Service on the basis that he had entered the United Kingdom illegally, and he was asked to provide the biographical information necessary to complete a bio-data information form. This was set out in a form signed by the Claimant on 7 December 2017. On this form he identified himself as Prichard Simukonda, saying that Kelvin Harara and Gift Bradley Chimera were aliases he had used. He stated that he was a Malawian national, born in Zambia on 29 March 1983. He stated that his mother (Mary Phire, a Zimbabwean national) had left when he was three years old; and that his father was John Simukonda, a Zambian national; and he referred to a sister named Daina (or Diana), a Zambian national approximately 28 years old. The Claimant also said he had been at school in Malawi from 1997 to 2000.
6.	On 20 December 2007 the Claimant made a claim for asylum. On 9 January 2008 he provided a statement in support of this claim. In the statement the Claimant asserted that he and his father had been active members of the MDC in Zimbabwe; that his father had been killed; and that he left Zimbabwe very shortly after this, when he realised that the people who had killed his father were looking for him. The Claimant sent a fax letter with this statement, and in that letter he stated that his date of birth was 29 September 1983, and that he was a Zimbabwean national, not a Malawian national.
7.	The Claimant’s asylum screening interview took place on 1 February 2008. On this occasion the Claimant again described himself as a Zimbabwean national born on 29 September 1983 in Harare. He said that both his parents were Zimbabwean nationals. He repeated that his father had died in 2000. The Claimant stated that he had a sister (Deana, or Diana) who was also a Zimbabwean national, and who lived in the United Kingdom. The Claimant stated that he had travelled in 2000 from Zimbabwe to Malawi, and then in 2001 from Malawi to the United Kingdom. He said that he had travelled to Malawi on a Zimbabwean passport that he had then lost in Malawi; and travelled from Malawi to London on a Malawian passport that he had then lost in London. The Claimant said he had been at school in Zimbabwe between 1989 and 2000. Based on this account, the Claimant was aged 17 when he left Zimbabwe, and was 18 when he arrived in the United Kingdom.
8.	Prior to this interview, on 17 January 2008 the Claimant had been granted temporary admission to the United Kingdom. His asylum claim was refused by letter dated 27 February 2008, but by this time the Claimant had ceased to comply with his reporting conditions, and could not be located. The letter refusing the asylum claim referred to the fact that the Claimant had asserted that he was Zimbabwean; the letter did not accept that assertion (see at paragraphs 16 – 17), but nevertheless the Home Secretary went on to determine (and refuse) the claim for asylum on an assumption that the Claimant was a Zimbabwean national.
(2)	Claimant’s reappearance in 2011
9.	In August 2011 the Claimant was arrested in Glasgow, for using a false Malawian passport (in the name of Don Harawa) to obtain employment. The Claimant attended an immigration status interview on 11 August 2011. The Claimant stated he was Zimbabwean, but had no documentation to corroborate this. He stated that he had arrived in the United Kingdom when he was aged 5. He said he had travelled with his sister and a woman he described as his aunt, from South Africa to France, and then travelled from France to the United Kingdom by train. He said he lived with his sister and the aunt in England until he ran away from home when he was age 11. He said that neither he nor his sister attended school in the United Kingdom. He said that his sister had died from cancer in 2007 in Bradford Royal Infirmary.
10.	On 29 November 2011 the Claimant was convicted and sentenced to 12 months in prison. By letter dated 7 December 2011 the Claimant was notified of his liability to automatic deportation under the provisions of the UK Borders Act 2007.
(3)	Deportation order, and detention
11.	By letter dated 18 January 2012 the Claimant was informed that a deportation order had been made pursuant to section 3(5)(a) of the Immigration Act 1971. At this time the Claimant remained in HMP Barlinnie. The Notice of Decision stated that the Home Secretary proposed 
“... to give directions for [the Claimant’s] removal either to Malawi or Zimbabwe, the country of which you are a national, or which there is reason to believe that you will be admitted. ”
The letter setting out the reasons for the deportation order summarised the various arguments made by the Claimant against deportation; it then rejected those arguments, and repeated the statement that the Claimant would be deported either to Malawi or Zimbabwe. So far as concerned the Claimant’s nationality, the letter summarised the different information that the Claimant had provided about himself from time to time since 2007; and noted that the Claimant had provided no documentation to support the various claims he had made. By February 2012 it had been recognised that the January 2012 deportation order had been made on an incorrect legal basis – the order ought to have been made under section 32 of the UK Borders Act 2007. On 15 February 2012 a further deportation order was provided to the Claimant on this different legal basis. This time the order stated that the Claimant would be deported to Malawi.
12.	In the meantime, by letter dated 25 January 2012 the Claimant was informed that he would be detained pending deportation. That letter set out a number of reasons in support of that decision. The letter referred to the likelihood that the Claimant would abscond if not detained taking into account (a) the fact that he had absconded previously (in 2008); (b) that he had a history of failing to observe United Kingdom immigration law; (c) that he had failed to provide satisfactory evidence as to his nationality or identity and was seeking to delay his removal by refusing to admit his true identity; and (d) the significant risk that he might re-offend with the consequence that unless detained the Claimant presented a high risk of public harm. The detention took effect on 3 February 2012, on the Claimant’s release from prison. That detention was initially pursuant to section 36(1) of the UK Borders Act 2007, but from 23 February 2012 the Claimant was detained pursuant to the power under Schedule 3 to the Immigration Act 1971, pending his removal from the United Kingdom.
13.	One final matter should be noted prior to consideration of the period of the Claimant’s detention. The confusion as to the legal basis for the deportation order (whether it was under section 3 of the 1971 Act or section 32 of the 2007 Act) caused confusion as to whether or not the Claimant had an in-country right of appeal. As the deportation order was ultimately made under the 2007 Act, there was no in-country right of appeal. However, before that point had been clarified the Claimant did commence an appeal; and then, notwithstanding the change in the legal basis for the deportation order, an appeal hearing took place, and the First-Tier Tribunal made a determination on the appeal (on 22 March 2012). This was in error, and nothing turns on it for the purposes of the claim the Claimant pursues in these proceedings. For sake of completeness I note that the Tribunal dismissed the appeal; and in the course of its reasons stated that the Secretary of State 
“has concluded that the [Claimant] is Malawian or at least not from Zimbabwe. As indicated there is insufficient evidence for the Bench in this particular instance to reach a contrary decision to that of the [Secretary of State].”
C.  	The Claimant’s case
14.	The Claimant’s case is put on a realistic and straightforward basis. Mr. Denholm who appears for the Claimant accepted that the Court was likely to conclude that while he was detained, the Claimant failed to co-operate with the immigration authorities in connection with the attempts to deport him. Mr. Denholm also accepts that the Claimant had lied about who he was, about details of his personal and family history, and about his nationality. None of this assisted the Claimant; and the Claimant’s actions provide some form of explanation for the length of the Claimant’s detention. But, submits Mr. Denholm, these matters only provide an explanation up to a point; they do not completely explain or provide a legal basis for the Claimant’s detention between February 2012, and 5 December 2014, the date when the Claimant was released on bail, having been detained for a period of some 2 years and 10 months.
15.	The Claimant’s submissions on the legality of the detention focus on a number of matters arising in the course of the detention; the general argument advanced is that certain matters were not progressed with sufficient speed or diligence, and the particular conclusion that is urged on me is that if those matters had been attended to or progressed in an appropriate manner, it would have become apparent well before December 2014 that there was no realistic prospect of deporting the Claimant, and the Claimant would then have been released from detention substantially earlier than he was. The Claimant points in particular, to a number of matters. First, the period between February 2012 and October 2012: it was only on 25 October 2012 that a nationality interview took place, and there was no sufficient reason for it to take so long to arrange this interview. Second, the period after August 2013. By mid-August 2013, the Claimant submits, all obvious and realistic avenues of inquiry into matters that might have facilitated the Claimant’s deportation either had been undertaken or could have been undertaken. The proposal raised around this time that the Claimant might be returned to Malawi on the basis of an EU letter was a course of action that had no reasonable prospect of success. Some matters pursued after August 2013 were entirely speculative, for example the request via Interpol directed to the authorities in Zimbabwe and Malawi to check their finger print records against the Claimant’s finger prints; other matters that were pursued after that time, were pursued too slowly, or ought reasonably have been pursued and completed well before that time, for example, investigation of relatives and associates of the Claimant in the United Kingdom in the hope that this would throw up further biographical detail about the Claimant that might help prove his identity and nationality. Drawing all these matters together, Mr. Denholm’s submission at the hearing on behalf of the Claimant was that his detention ought to have come to an end by the end of August 2013.
D.  	Analysis
(1)	Applicable legal principles
16.	There is no substantial dispute between the parties as to the applicable legal principles. The Secretary of State’s power of detention must be exercised in accordance with the principles set out in the judgment in R v Durham Prison Governor ex parte Hardial Singh [1984] WLR 704. That case also concerned the power of detention under Schedule 3 to the 1971 Act. Woolf J drew attention to the fact that the statutory power could only be used for its stated purpose (in the present case, pending removal of the person detained); and could only be used for such period as reasonably necessary for that purpose; and that it was incumbent on the Secretary of State to “exercise all reasonable expedition” to ensure that steps necessary for the removal of the detained person are taken, so as to permit removal within a reasonable time. These principles are long-established; they have often been re-stated by the courts: see for example the judgment of Lord Dyson in R(WL (Congo)) v Home Secretary [2012] 1 AC 245 at paragraphs 22 and 102 – 105. For the purposes of these principles the notion of a period that is “reasonable in all the circumstances” has two aspects. On the one hand the length of the reasonable period can be assessed by reference to the level of activity being undertaken by the Secretary of State from time to time, with a view to effecting the deportation; on the other hand the notion of a reasonable period imposes a form of prospective discipline on the Secretary of State – as explained by Lord Dyson in WL 
“... 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 ...”.
17.	Particular matters present themselves for consideration in a case such as this one where the Claimant’s own actions throw up obstacles in the path of deportation. In the present case, the Claimant failed to cooperate with the deportation decision. Between 2007 and 2012 he told various different and conflicting stories about himself, his family, his education, his nationality, when and how and why he had travelled to the United Kingdom (see the various matters referred to above at paragraphs 4 – 7). These matters all served to make any implementation of the deportation decision much more difficult. These matters also serve to underline the possible significance of any decision to release the Claimant: his failure to co-operate, together with his past history of absconding, and his recent conviction for an offence involving the use of a false identity document all evidenced the high risk that, if released the Claimant would abscond again, and thus frustrate the purpose of the deportation order made under the mandatory provisions of section 32 of the 2007 Act.
18.	From the time of the deportation order, the Secretary of State proceeded on the premise that the Claimant was a Malawian national, notwithstanding that after initially stating that this was his nationality, by 2008 the Claimant asserted that he was a Zimbabwean national. In my judgment the Secretary of State was entitled to proceed on the premise that she did; the Claimant gave so many different versions of his own story that it was certainly not unreasonable for the Secretary of State to have as a working premise that the nationality that the Claimant had first asserted (Malawian) was his nationality; and the assertion of Zimbabwean nationality made by the Claimant, only by the time of his asylum claim, was an assertion of convenience.  In the course of these proceedings I have had the opportunity to see and hear the Claimant as he gave evidence. As a witness he does not inspire confidence, he now readily accepts that he has lied about his name, and his nationality; that he lied when he said his father had been killed for his political views and actions (as a member of the MDC); that he made up a story for the purposes of his asylum claim to the effect that he was at risk of persecution in Zimbabwe on grounds of his political beliefs; that he has told very different stories about the fate of his mother (either that she had left the family when he was three years old, or that shortly before he left Zimbabwe with his aunt, she had been killed because she was believed to be a witch). He appeared to me to be a person capable of saying whatever he thought would best serve his own interests, as he saw them to be, from time to time. That being so, there is no basis on which the Secretary of State could be criticised for not taking the Claimant at his word when he asserted that he was a Zimbabwean national; and this is particularly so given that, as at the point of his detention in February 2012, there was no documentary or other objective evidence to support such a claim. All this meant that when the deportation order was made, it must have been clear to the Secretary of State that putting that order into effect would be likely to be difficult and time consuming.
19.	However, I do not take from this that the present case was one in which, either at the outset, or fairly soon after, the Secretary of State would be driven to the conclusion that she could no longer detain the Claimant. Putting to one side any issue as to the problems that might arise in putting the deportation order into effect, as at February 2012, there were certainly strong grounds for concluding that unless the Claimant were detained there was little prospect that the deportation order would be enforced. In 2008 the Claimant had been granted temporary admission to the United Kingdom, but had almost immediately absconded. He had then gone to ground until being arrested in November 2011 for an offence involving the use (or at least attempted use) of a false passport. However, the existence of grounds to believe that the Claimant would abscond only takes the Secretary of State so far; a risk of absconding, however strong, cannot justify detention pending deportation, if there were no prospect that the Claimant would be deported.
20.	What then is the significance of non-cooperation in terms of the approach to the requirements for reasonableness specified in the Hardial Singh principles? I have been referred to two authorities on this issue. In R(Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin), Deputy High Court Judge John Howell QC stated as follows (at paragraph 56 of his judgment).
“In my judgment the significance of a detainee’s own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee’s own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may be well be longer than it will be in the case of individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him. ...”
In R(NAB) v Secretary of State for the Home Department [2010] EWHC 3137 (Admin), Irwin J said this (at paragraphs 41 – 42 of his judgment)
“41.  Faced with a recalcitrant person whom it is proposed to deport, the authorities can and should be free to make strenuous efforts to obtain the assent of the individual concerned. They can and should seek any way around his consent, for example by persuading his country of origin to issue travel documents without a disclaimer or any other indication of willingness on the part of the subject. But if no such action produces results, then, depending upon the facts of the case, it may be necessary for the authorities to face up to the fact that all of the shots in their locker, if I may use that expression, have been expended.
42.  What the law does not permit, it seems to me, is an indefinite detention of someone who is never going to consent to deportation, without taking all other steps that might be open, but merely sitting back without at least a plan to obtain the end of deportation. Something of that kind, in my judgment, emerges here from the internal documents coming from the Secretary of State bearing on the period from the second half of 2008 to the second half of 2009.”
21.	Thus lack of cooperation on the part of the detained person is neither a trump card for him, nor a trump card for the Secretary of State.  The fact that the person detained is a non-cooperative detainee does not dilute or diminish the obligation to pursue removal with appropriate diligence. Yet in such a case, the Secretary of State can be expected to seek to exhaust every option available to her, and in principle is to be afforded the opportunity to do that. In such a case, it is quite possible that detention over an extended period will be consistent with Hardial Singh principles. But at some point the options for the Secretary of State will run out, and at that point detention under the powers in Schedule 3 to the 1971 Act will cease to be lawful. This is the same as the approach that applies in any instance in which the Schedule 3 Immigration Act 1971 power of detention is used: compare for example the decision of the House of Lords in R(Khadir) v Home Secretary [2006] 1 AC 207, in the speech of Baroness Hale at paragraph 4, and the speech of Lord Brown at paragraphs 32 – 34. The only difference in circumstances such as those in the present case is in respect of the practical assessment of the limits of what is reasonable, and of the point at which there ceases to be any prospect of removal.
(2)	Two specific matters raised by the parties
22.	Before turning to that assessment on the facts of this case I will first  address two other matters raised by the parties. The first – raised by Mr. Hansen, counsel for the Secretary of State – is in respect of the significance of the various failed bail applications that were made by the Claimant in the course of his detention. The Claimant applied for bail on various occasions during his detention (May 2012, November 2012, October 2013, February 2014, March 2014, May 2014, September 2014, October 2014, and December 2014), and his release from detention occurred because the December 2014 application resulted in a decision to grant bail subject to conditions. My conclusion is that the decisions to refuse bail do not say much that is likely to be of assistance for the purposes of the issue in this case as to the legality of the Claimant’s detention. Quite apart from the fact that a decision on bail (one way or the other) is not a decision as to the legality of the detention, there is no certain evidence before me as to what information was put before the judges who considered each of the bail applications, and how that information compares with the evidence now before me in these proceedings. In any event, I do not see what useful purpose could be served by an approach to this claim for damages for unlawful detention that in whole or in large part took the form of some kind of audit of or inquest into what had happened on each occasion when applications for bail were made and were refused. It makes much more sense to approach the merits of the Claimant’s case on its own terms and on the basis of the evidence I have heard and seen.
23.	The second point is raised by Mr. Denholm and is based on the Secretary of State’s powers of compulsion at section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. Under that section the Secretary of State may require a person to do certain things or provide specified information if she thinks that such action might enable a travel document to be obtained which would facilitate the person’s deportation. If a person fails, without reasonable excuse to comply with a requirement made by the Secretary of State, the person commits a criminal offence. If the person is convicted on indictment he is liable to a maximum prison sentence of two years; if it is a summary conviction the maximum term of imprisonment is twelve months. Mr. Denholm suggests that these maximum periods of imprisonment for the offence of failing to comply with a requirement made by the Secretary of State provide some form of yardstick – or at least rule of thumb – by which to evaluate the legality of the Claimant’s detention (which extended to two years and ten months). I disagree. The penalties that may be imposed for commission of an offence under section 35 of the 2004 Act are just that, penalties. The legality or not of a period of detention in exercise of the power at Schedule 3 to the 1971 Act depends on entirely distinct considerations – that is to say, the Hardial Singh principles. Any attempt to weave in consideration of the maximum penalties which an offence under section 35 of the 2004 Act carries, to the application of the Hardial Singh principles is only likely to confuse and distort.
(3)	Steps taken to secure the Claimant’s removal following his detention
24.	I now turn to the application of the Hardial Singh principles in the context of this case. So far as the application of those principles involves questions of reasonableness or any issue as to whether or not the prospect of the Claimant’s removal continued to exist, the issue for me is not a question of Wednesbury reasonableness; I must decide those matters for myself, with the burden of proof that the detention was lawful, resting on the Secretary of State. I must approach matters giving due weight to assessments and choices made by the Secretary of State at the time, not reaching conclusions on the basis of hindsight. This approach is common ground between the parties in this case. The Claimant has drawn my attention to the judgment of Lord Thomas CJ in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, where he said the following, at paragraph 42
“42 	In determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision of the court is necessarily ex post facto , the court does not take into account matters that subsequently occurred. As Sales J explained in R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin), at paragraph 105:
In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.”
His decision was upheld by this court: [2010] EWCA Civ 1112. 
25.	The Defendant has drawn my attention to paragraph 15 of the judgment of the High Court in Alsaadon v Secretary of State for the Home Department [2013] EWHC 2184 (Admin) where Mr. Ockelton, Deputy High Court Judge said this,
“15. In applying [the Hardial Singh principles], however, it is important to remember that each decision to detain, or to maintain detention, falls for assessment on the basis of the facts and the circumstances at the time the decision was made. Although a court is inevitably looking back on a series of past facts, this is not an occasion for the exercise of hindsight. A person making a decision at a particular time is not in retrospect to be fixed with knowledge of the future. He can be criticised only for a fault in his approach to the circumstances as they were at the relevant time. That will generally mean that if there is an administrative order in place he is entitled to rely on it. Its subsequently being set aside or cancelled is irrelevant, save in the case where the order so obviously has some defect that anybody dealing with it would be bound to question whether he should rely on it. Similarly, anybody who needs to make a judgement about what will or may happen in the future is entitled to rely on the circumstances at the time. He is entitled to intend or hope for events which, as it transpires, may not happen. That they did not happen is irrelevant, unless his judgment at the time was unreasonable.”
26.	In this case there are certainly criticisms that can be levelled at the Secretary of State. Mr. Denholm has pointed first, to the time taken (between February and October 2012) for a nationality interview to take place. This interview is one of the steps taken by the Secretary of State in any case in which there is doubt about a person’s nationality. The objective of the exercise is to gain information about the person, his family and his associates (collectively referred to by the Home Office as “bio-data”) with a view either to establish the person’s nationality, or to identify possible further strands of inquiry. In the present case the interview was required given the various conflicting information given by the Claimant about himself, his family, the circumstances of his arrival in the United Kingdom and so on. It is apparent from the Detention Review form dated 26 March 2012 that a request for the nationality interview had been made by that time. The documentary evidence also indicates that that request was followed up on one or two occasions thereafter. But the interview did not take place until 25 October 2012. There is no specific explanation for this in the evidence before me.
27.	Mr. Dudman, a Higher Executive Officer in the Glasgow Criminal Casework Office gave evidence on behalf of the Secretary of State in respect of events that took place during the totality of the period of the Claimant’s detention. During that period he was involved in a number of the detention reviews of the Claimant’s detention, either as initial reviewer, or as the officer responsible for second consideration of whether or not to maintain the detention. Thus he is reasonably well-placed to explain what happened. He was unable to give any specific explanation of why it took some 7 months to arrange the nationality interview. He explained that at the time nationality interviews were usually conducted by warranted officers, and that there were some 35 or so warranted officers based in Scotland. He said that there was no “normal” period within which a nationality interview could be expected to take place; but that it all depended on when an appropriate immigration officer was available, and that on occasion it could take (and had taken) a long time to arrange for a warranted officer to be available. He also pointed to the range of responsibilities and casework that will be the responsibility of any one officer from time to time, and I accept that it would be wrong to assess the circumstances of this case without having well in mind that any immigration officer will be covering a range of cases at any one time and that for that reason the ability to progress any one case may be affected by what is happening in any of a number of other cases.
28.	The delay that took place in arranging the nationality interview was obviously regrettable; although Mr. Dudman stated that there was no “normal” period within which a nationality interview should take place, seven months is too long a period, and must at the least evidence some form of breakdown in the usual working arrangements within the UK Border Agency. But I am not satisfied that this matter alone is sufficient to demonstrate that the Claimant’s detention became unlawful. The interview should have taken place earlier; but the need for the interview at all was the result of the Claimant’s various and conflicting descriptions of himself and his life. The Claimant was not responsible for the delay that occurred, but he created the context for it, and to that extent ran the risk that he might be affected by this sort of administrative or logistical error. Moreover, in the circumstances of the present case I consider that it is better to consider the period of detention in the round, taking account of all the various steps that were taken, or not taken, and their timing, rather than looking at one matter in isolation. That is so, notwithstanding that the 7 month period between March and October 2012 cannot be dismissed as obviously immaterial. For this reason I will revisit this point after addressing the remainder of the Claimant’s submissions, and look at the totality of the position
29.	The next submission that is made for the Claimant is one that looks at the period of detention in the round up to and including December 2014 and is to the effect that although by December 2014 it was plainly apparent that the Claimant’s deportation would not take place in the foreseeable future, that conclusion ought to and would have been clear to the Secretary of State well before that time if she had ensured that attempts to secure the Claimant’s removal from the United Kingdom had been pursued reasonably and with reasonable vigour. This general submission leads (says the Claimant) to the specific conclusion that based on Hardial Singh principles the Claimant’s detention ought not to have lasted beyond August 2013.
30.	My conclusions in respect of the events following the nationality interview in October 2012 and up to December 2014 are as follows. The upshot of the nationality interview was that although the Claimant asserted he was Zimbabwean, there was no documentation to confirm that, and the interviewer observed that the Claimant did not know anything about Zimbabwe. In any event the Claimant’s credibility was doubted given the various different accounts he had given of himself and his circumstances. Following the nationality interview inquiries were made of both the Malawian authorities and the Zimbabwean authorities. In November 2012 the Malawian authorities responded to the effect that based on the information then provided they were unable to confirm whether or not the Claimant was a Malawian national. I take this as meaning simply that the Malawian authorities had insufficient information to make a decision, not that any positive decision had been taken to the effect that the Claimant was not a Malawian national.
31.	In December 2012 a request was made to obtain the Landing Card records for the Claimant’s sister, no doubt with a view to seeing if any information from that source cast light on the truth of the Claimant’s position. It is also apparent from the documentary records that at the same time, and also in the early months of 2013, files relating to other persons associated with the Claimant were being examined to see if any information relevant to the Claimant could be gleaned from them.
32.	On 31 December 2012 solicitors acting for the Claimant provided what they described as the Claimant’s “original birth certificate”.  In fact, this document was not a birth certificate at all, but rather a document purporting to be an extract from a register of births. On its face this document purported to indicate that the Claimant had been born at Marondera in Zimbabwe on 29 September 1983. This document was then sent, via “RALON” (the Home Office risk and liaison overseas network) to the Zimbabwean authorities for authentication.  It is entirely unsurprising that it took a number of months for any response to arrive. The response was received on 4 July 2013 and was to the effect that the Zimbabwean authorities did consider that the document was not authentic.
33.	Meanwhile in May 2013 various matters were being pursued in relation to known associates of the Claimant, again with a view to obtaining information about him. Experian searches were made in respect of five people thought to be relatives of the Claimant (including his brother-in-law, Trenchmoral Madzinga). Further inquiries were made in respect of the Claimant’s sister (Diana), based on the Malawian passport she had used to enter the United Kingdom in 2001 (she had never asserted any nationality other than Malawian nationality).  By this time a photocopy of that document had been obtained; a request was made to see if it would be possible for the Malawian authorities to authenticate the document. Clearly if this could be done, it would provide further information that could be put to the Malawian authorities to satisfy them of the Claimant’s nationality. The response to this at this time, was to the effect that the copy of the passport would be unlikely to assist because the passport contained only a passport number and manuscript biographical information.
34.	In August 2013, and following the report from the Zimbabwean authorities, a further interview was conducted with the Claimant. This was with a view to obtaining better or perhaps more plausible biographical information from him. Notwithstanding the lack of assistance provided by the Claimant thus far, it was not unreasonable to revisit these points with him, particularly given the statement by the Zimbabwean authorities that the copy of the registry entry which the Claimant had provided was not a genuine document. The interview was also conducted in the hope that it would produce information that was sufficient to persuade the Malawian authorities to accept the Claimant on the basis of an EU letter in place of an ordinary travel document. This was a reasonable step to take. At that time (and until November 2014) Malawi did accept returns on this basis, so long as sufficient information could be provided so as to satisfy them that the person concerned was a Malawian national. A further line of investigation at this time was to seek information about the Claimant from UK agencies the Claimant may have come into contact with in the course of his time in the United Kingdom: such inquiries were made of NHS Scotland, the Department for Work and Pensions, and HMRC. In the event, these inquiries did not produce any material information.
35.	In December 2013 West Yorkshire Police were asked to make inquiries of Gertrude Chivimba (aka Lincy Simukonda). She is the Claimant’s cousin. She had provided a Zimbabwean birth certificate in connection with her own dealings with UKBA. UKBA now asked West Yorkshire Police to ask for confirmation of her nationality and identity. By January 2014 UKBA had obtained a copy of a Malawian passport that Ms. Chivimba (or Simukonda) had used to enter the United Kingdom, and a copy of a Zimbabwean birth certificate that she had used in support of her subsequent claim to be a Zimbabwean national. Her immigration history was not entirely straightforward. It appears that at some point she had claimed that her Malawian passport had been lost. UKBA sent the passport to the Malawian authorities for authentication (via the Foreign and Commonwealth Office). I accept that this was a reasonable step to take; proof that she was a Malawian national would be relevant to demonstrating to the satisfaction of the Malawian authorities that the Claimant was also a Malawian national.
36.	Also in December 2013, information about the Claimant’s associates was provided to UKBA’s criminal cases investigation team with the aim that that team would interview the Claimant’s known associates. These had been identified (by November 2013) and their places of residence had been identified from information on the electoral roll. Next (and also in December 2013), the Claimant’s fingerprints were sent, via Interpol, to the Malawian and Zimbabwean authorities, again with a view to obtaining better information about the Claimant’s identity or his history in one or other (or both) of those countries. It appears that the intention was then to interview the Claimant again. Again (and also entirely unsurprisingly) the results of this line of inquiry were some time in coming, and I note that the request was chased by UKBA in April 2014, and again in August 2014.
37.	In January 2014 UKBA requested the CPS to provide a copy of the case file concerning the Claimant’s arrest and prosecution in 2011; again this was with a view to identifying any person who had been associated with the Claimant with a view either to obtaining information from them about the Claimant, or with a view to seeing if any information held in respect of any of the associates shed any light on the Claimant himself.
38.	It is apparent from the documentary evidence dating to the early to mid-part of 2014, that UKBA’s intention was to re-interview the Claimant to put to him the various information available to the effect that he was a Malawian national. However, it must be noted that at this time, various lines of inquiry that could plausibly have produced information relevant to such an interview, remained outstanding. For example, the request made via Interpol, and the request in respect of the cousin’s passport that was outstanding with the Malawian authorities. Later in 2014 (in June) a further request was made to the Malawian authorities, this time in respect of the Claimant’s sister’s passport – which in June 2014 had been confirmed by the Malawian authorities to be genuine – as to whether there were any documents dating back to the time when the application for that passport was made which might provide further information on the Claimant’s family. In addition there was the possibility that relevant information for the purposes of the proposed interview with the Claimant could come from the inquiries relating to the Claimant’s associates. All these matters indicate to me that the Claimant’s case had become a rather complex one. There were a number of strands of inquiry in progress, both in the United Kingdom, and abroad. Although it could be said that these matters might have been pursued quicker or more vigorously, my conclusion is that that suggestion is unrealistic. It leaves out of account the fact that in some respects the speed of progress that UKBA could make depended on the speed of response from overseas governments or authorities; and it also leaves out of account the fact that the Claimant’s case was not the only case UKBA was addressing throughout this period.
39.	A further matter to work in to the picture is that in March 2014, a proposal to interview the Claimant’s brother-in-law (Mr. Madzinga) was made. That course of action was agreed on, but the interview then needed to be delayed because he was subject to on-going criminal proceedings, due to be heard in May 2014. That interview took place on 20 June 2014. In that interview Mr. Madzinga stated that his late wife (the Claimant’s sister) had spoken Chewa (a language spoken in Malawi) both to her mother and to the Claimant. Mr. Madzinga also identified the Claimant’s cousin (Ms. Chivimba/Simukonda) as someone who also spoke Chewa, and he said that he believed she was a Malawian national.
40.	There is one final matter to add into the picture. This is that in the middle part of 2014, the Secretary of State also took steps to see if Zimbabwe would accept the Claimant (on the basis that the Claimant still maintained that he was a Zimbabwean national). On 20 June 2014 a further bio-data form was sent to the Claimant, and he was told that the information he provided would be sent to the Zimbabwean authorities to permit them to verify his identity. From March 2014 Bail for Immigration Detainees (“BID”) corresponded with UKBA on behalf of the Claimant. In a letter dated 18 July 2014 BID stated that the Claimant was willing to attend either the Malawian Embassy or the Zimbabwean Embassy for interview. BID asked UKBA to make the arrangements necessary for such an interview. An error occurred in relation to making the arrangements for this interview: the application for a travel document was sent to the Zimbabwean authorities in July 2014, but the person who did this did not realise that it was necessary to make a further request for the necessary interview. This error was not spotted until the end of October 2014. The consequence was that the interview at the Zimbabwean embassy did not take place until 12 November 2014. However, at that interview the Claimant declined to provide information, and stated that he was not willing to go to Zimbabwe. On 17 November 2014 – entirely unsurprisingly given the Claimant’s actions at the interview – the Zimbabwean authorities confirmed that they were unwilling to provide a travel document for the Claimant.
41.	Drawing these matters together, I do not consider that the Claimant’s detention prior to his release on bail in December 2014 was contrary to the Hardial Singh principles. The Claimant was detained over an extended period. However, the conflicting information that the Claimant had given, and his failure to cooperate when in detention made it inevitable that difficult and lengthy inquiries would have to be undertaken to attempt to establish a reliable picture of him that would satisfy the Malawian authorities (or the Zimbabwean authorities) that they should accept him. I consider that it was reasonable for the Secretary of State to act on the premise that the Claimant is a Malawian national. Once the nationality interview had been completed a number of lines of inquiry seeking information that would satisfy the Malawian authorities, were pursued, both in the United Kingdom (in respect of family members, and associates of the Claimant), and abroad (in respect of the Claimant, his sister, and his cousin). It could be said that for the most part these lines of inquiry were pursued consecutively, rather than all at the same time. It might also be said that some matters were pursued out of order, or in fits and starts. But I do not consider these matters are ones that render the Secretary of State’s approach unreasonable. In a difficult case such as this one, it is not uncommon for matters to be taken out of order, or for avenues that turn out to be poor ones to be followed for a period, or for some time to be taken to identify the most profitable lines of inquiry. None of this necessarily demonstrates a failure to address matters with proper expedition. All the officers involved in the Claimant’s case were also responsible for other cases; I do not doubt that all had caseloads from time to time that were more than sufficient to fill all the time they had available. Inevitably this may mean that no one single case is pursued consistently or continuously over an extended period. In the present case there was the added factor that any response to any inquiry of a foreign government was likely to take some time. In part, this explains what might appear to be an ebb and flow in the progress made in the Claimant’s case. The other matter is that, as I have already stated, the nature of the Claimant’s circumstances made this a complex case. That being so it is not unreasonable to expect that progressing it will take an extended period; nor is it unreasonable in a case such as this to see lines of inquiry being pursued one at a time, rather than all together.
42.	I accept also that errors did occur between February 2012 and December 2014. One such concerned the time taken in 2012 to arrange the nationality interview. Another was the mistake made as to what needed to be done to secure an interview at the Zimbabwean Embassy.  However, looking at matters in the round I am not satisfied that these matters are in context, sufficient to render any part of the Claimant’s detention unlawful. The failure to conduct the nationality interview delayed progress at first, but I am not satisfied that overall this had much of an impact. Time was taken to secure the interview at the Zimbabwean Embassy, but given the Claimant’s conduct when the interview did take place, I cannot see that this is material either. Given his conduct at the interview, it is difficult to understand why the Claimant (through BID) made the point that he was willing to attend an interview at all.
43.	I fully appreciate the thrust of the case advanced by Mr. Denholm on behalf of the Claimant; this is to the effect that the overall period of detention was too long because considering matters in the round the steps that could reasonably be taken to secure the Claimant’s removal did not take place quickly enough, such that well before December 2014 it ought to have been apparent that there was no real prospect that the Claimant would be removed. Assessing matters in the round, I do not accept that case. At all times during the detention the Secretary of State maintained her intention to remove the Claimant from the United Kingdom. Given that the circumstances of the Claimant’s case were difficult and complex, overall, reasonable steps were taken with reasonable expedition to secure the objective that the Claimant should be removed from the United Kingdom. By December 2014 I do not consider that the point had been reached where it could be said that the prospect of the Claimant’s removal had ceased to be realistic. Over time, a pattern of information had emerged that supported the conclusion that the Claimant is a Malawian national, notwithstanding his own denial: for example, the information as to his sister’s nationality, and the information obtained in relation to his cousin. There was at least one legitimate line of inquiry outstanding with the Malawian authorities – as to information that may have been submitted by the Claimant’s sister in support of her application for a Malawian passport. Over time the information linking the Claimant to Malawi had increased. In the round there remained a sufficient prospect of removal notwithstanding the duration of the detention; to adopt Irwin J’s analogy, all the shots in the Secretary of State’s locker had not yet been expended.
44.	For these reasons, the Claimant’s claim for damages for unlawful detention fails.