Case No. CO/5003/2016 
Neutral Citation Number: [2017] EWHC 745 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 14 February 2017
 
B e f o r e: 

MICHAEL FORDHAM QC
(Sitting as a Deputy High Court Judge)

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Between: 
THE QUEEN ON THE APPLICATION OF MUHAMMAD
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant 
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Miss K Apps (instructed by Leigh Day) appeared on behalf of the Claimant 
 
Miss E Dehon (instructed by Government Legal Department) appeared on behalf of the Defendant 
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J U D G M E N T (Approved)
THE DEPUTY JUDGE:

Introduction
1.	This is a claim for judicial review commenced on 5 October 2016 for which Edis J gave permission on 8 November 2016.  The case involves the liberty of the individual and has been expedited.  

2.	The Claimant challenges his immigration detention, which began on 22 April 2015 at the end of the custodial element of a prison sentence.  His detention continues today.  By judicial review, he claims a declaration that his detention is or has been unlawful, a mandatory order for his release, and damages for false imprisonment and violation of Article 5. He invokes the “Hardial Singh principles”, whose applicability is common ground.

3.	There are four Hardial Singh principles, authoritatively recognised by the Supreme Court in Lumba [2011] UKSC 12 [2012] 1 AC 245: see the judgment of Lord Dyson at paragraph 22 in particular.  By way of convenient labelling only, I will call the four Hardial Singh principles (i) “the purpose principle”, (ii) “the duration principle”, (iii) “the removability principle” and (iv) “the diligence principle”. By those labels, I am referring to Lord Dyson's description that the principles are as follows:

"(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." 

4.	It is common ground that the application of the Hardial Singh principles is to be approached objectively by the judicial review court: see, for example, Abraha [2015] EWHC 1980 (Admin) at paragraph 33; DZ [2017] EWCA Civ 14 at paragraph 28 and Fardous [2015] EWCA Civ 931 at paragraphs 42 to 43. (References in this judgment to paragraph numbers in Abraha should be treated with caution, because the print-out I was shown may well not reflect the official paragraph numbering.)

5.	There is no doubt in my judgment that the first Hardial Singh principle, the purpose principle, was met in this case throughout.  Indeed, the contrary has not been suggested.  This was, throughout, immigration detention for the purpose of effecting a removal to Pakistan. The other three Hardial Singh principles are, however, in play.  This is one of those cases which involves an obstacle in that the Secretary of State has been seeking, so far without success, to secure an emergency travel document (ETD), which is a necessary step so far as the Claimant's removability is concerned.

6.	The Claimant through Miss Apps submits, and I accept, that what is needed in a case such as the present is a detailed chronological evaluation of the factual history.  In that regard, I was shown JS [2013] EWCA Civ 1378 at paragraph 56.  She submits that periods in which there is apparently little or no administrative activity call for a detailed explanation: see JS paragraphs 60 and 63.  These cases are heavily fact-specific, and I shall come on to explain the extent to which explanations were called for in the present case.  Miss Apps reminds me that the burden of justifying the detention is on the Secretary of State.  In that regard, I was shown Mahfoud [2010] EWHC 2057 (Admin) paragraph 6(vii), as well as Abraha at paragraph 19 (citing Khawaja).

7.	The Claimant was a foreign national prisoner.  Raids on two addresses in 2013 had led to his arrest, trial, conviction and sentence.  He had committed three offences relating to false identity leading to what overall, taking account of the concurrent and consecutive sentences, was a custodial period of 12 months.  The element he was required to serve expired, as I have explained, on 22 April 2015. By that time the Secretary of State had taken a number of steps towards his removal.  Notice of intention to deport was issued on 26 January 2015.  A deportation order was made on 30 March 2015 and a decision letter generated on 14 April 2015.  A minute describing the basis for the immigration detention was produced. The immigration detention began, as did the requisite detention reviews and monthly progress reports. There are in the bundles some 22 detention review reports and a number of monthly progress reports. 

8.	Both parties invited my attention to a policy document, a “Guide”.  It was printed out for the substantive hearing, downloaded, I was told, from an internal governmental source.  I was shown the current version, and asked to proceed on the basis, which I do, that it was a continuing policy which has not materially changed at relevant dates in this case.  On that basis, I can put to one side the fact that it is undated and that I do not have any earlier versions. I was not asked in this case to make any finding in relation to publication of relevant policy documents. I make no comment, save for the fact that there are passages in Lumba which deal with the question of relevant policy and its publication. 
9.	The Guide is called the "Returns Logistics Guide to Travel Documents ‑ Removal to Pakistan" and it describes three relevant steps that are available to the Secretary of State in a case such as the present.  The steps are these.  Firstly, there is an interview and consideration by the Pakistan High Commission with a view to the High Commission issuing a travel document.  Where that is unsuccessful, secondly, there is the step of referral under the NADRA (National Database and Registration Authority) scheme, to verify the identity of individuals without good supporting evidence.  The third step under the guidance is that cases not verified by NADRA may be referred by the Secretary of State to a Returns Liaison Officer for investigation in Pakistan.

10.	Taking these three steps in turn, the PHC interview is described as mandatory in all cases.  The Guide describes minimum evidence requirements to be supplied to the PHC in an application pack.  They include photographs, relevant biodata, a 13 digit Computerised National Identity Card (CNIC) number and a copy of a new style passport.  I add that the list includes a lost passport form, which suggests that those passport requirements at least may be alternatives.  The Guide goes on to describe that any other supporting evidence should also be provided.  

11.	As to the second step, the NADRA scheme, the Guide explains that that is a scheme available where there is no good supporting evidence involving special visits to the United Kingdom by officials who conduct special interviews.  The Guide describes the collection of biometric information, fingerprints and photographs to be checked against a national database.  Under the heading "How long will it take", the guide explains that NADRA results can take up to three months to come through and refers to the possibility of seeking a priority review.

12.	The third step, referring a case to the RLO, is described in the Guide. However, the Guide states as follows:

"New RLO referral cases are currently on hold unless CCD [that is Criminal Casework Directive], high priority or exception."

The first 13 and a half months 
13.	I am satisfied that there was no breach of any of the Hardial Singh principles during the period 22 April 2015 up to 6 June 2016, being some 13 and a half months.  There was, in my judgment, during that period no violation of the duration principle, the removability principle or the diligence principle. 

14.	So far as duration is concerned, I have considered the position objectively, but without hindsight and on the material that was available to the Secretary of State, in line with the authorities.  I have had regard to the factors spelled out by Lord Dyson in Lumba at paragraph 104, citing this from an earlier judgment of his own:

"It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation...  But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences." 

15.	I remind myself also in considering the duration principle that there is no yardstick or red line in terms of a period beyond which detention becomes unreasonable.  It depends upon the circumstances of the particular case: see for example Mahfoud at paragraph 6(iv).  

16.	In my judgment, it is clear that the Secretary of State throughout this period was seeking to pursue the steps set out in the Guide: step one, the PHC interview and decision and then, step two, the NADRA referral process. A PHC interview took place on 25 November 2015 but drew a blank, as recorded in a note dated 22 January 2016.  The second step was then promptly identified on 27 January 2016.  The case was accepted within the NADRA process on 1 February 2016 and the NADRA interview took place on 29 February 2016.  The results were then awaited, but they drew a blank on 6 June 2016. Those were, in my judgment, diligent and expeditious steps.

17.	Moreover, the Secretary of State's diligence extended, as it needed to, to the collection and provision of those documents considered by the Secretary of State to be relevant.  An application pack was prepared and was revised and updated.  The old style passport relating to the Claimant was clearly, on the evidence, provided and is noted in the documents as having been provided, as was such information as the Secretary of State considered relevant so far as biodata and family members was concerned.  There was no 13 digit CNIC number provided because none was available.   Notwithstanding that that is described in the Guide as a minimum requirement, in my judgment, it was both reasonable and appropriate for the Secretary of State to take the first step, described in the Guide as mandatory, of asking the Pakistan High Commission to interview the Claimant and consider the documents.

18.	Seven months elapsed between 22 April 2015 and 25 November 2015 when the PHC interview took place.  But in the circumstances of the present case, that lapse of time was referable to the Claimant's own actions in making an asylum claim which the Secretary of State had properly to consider, as she did. So, the Secretary of State had prepared the ETD pack on 4 June 2015.  A PHC interview had been arranged for 18 June 2015, but two days prior to that on 16 June 2015, the Claimant made his asylum claim.  The interview with the PHC was therefore cancelled.  There followed asylum interviews: a screening interview on 9 July 2015 and a full interview on 30 July 2015.  The submissions relating to asylum, and also requesting that the deportation order should be revoked, were considered by the Secretary of State culminating a decision letter dated 10 November 2015.

19.	In my judgment, no violation of any Hardial Singh principle can arise so far as that seven month period is concerned.  The Claimant in his own witness statement accepts that he was resisting deportation and did not cooperate with the June 2015 interview.  Although all periods of time are relevant when anxiously scrutinising the legality under Hardial Singh of executive immigration detention, the position in law is that reduced weight falls to be given to periods which are attributable to claims being advanced by a claimant, especially where they can properly be characterised as unmeritorious: see Lumba paragraph 121.  In my judgment, that characterisation properly applies to the period that I have just described.

20.	The waiting period 29 February 2016 to 6 June 2016 is just over three months.  That is a significant period in the context of the administrative deprivation of liberty. It is not, in my judgment, to be understated.  However, I am satisfied that no violation of a Hardial Singh principle arises from that period on the facts of the present case.  I am very far from saying that such periods will automatically or routinely be justified.  They may or may not be on the particular facts and circumstances.  But in this case, in my judgment, the Secretary of State was entitled to wait for that period of three months, bearing in mind that she had taken appropriate steps available to her pursuant to the Guide, bearing in mind that the three-month period is the one described in the Guide itself, and bearing in mind that this was a period of time while she was awaiting steps being taken by the relevant foreign state.  In that latter regard, I was shown ML [2016] EWHC 2177 (Admin) at paragraph 34.  No blanket rule can be derived from that paragraph, nor was the contrary suggested by Miss Dehon for the Secretary of State, but it helpfully illustrates the fact-specific way in which the circumstances fall to be considered by a court.
21.	In considering the period of 13 and a half months, it is, in my judgment, of particular relevance that this was a case in which the Claimant was characterised as being an abscond risk and, moreover, a risk of re‑offending.  Those are factors of significant relevance and weight in applying Hardial Singh: see Lumba paragraphs 104 and 121 so far as abscond risk is concerned, and paragraph 110 in relation to re‑offending risk.  In her skeleton argument Miss Dehon characterised the re‑offending risk in this case as being associated with absconding and questions of immigration control.  She said this:

"Whilst the risk of harm to the public stemming from the Claimant's release is low, the risk of the commission of criminal offences has been consistently assessed in the detention reviews as high.  This is reasonable given the fact that the Claimant has no means to sustain himself as an over stayer and given the fact that if he absconds, he will be likely to do so via a false identity."

22.	In my judgment, it is right to recognise the link between re‑offending risk and immigration control offences and absconding.

23.	This is a case in which there was, and remains, a substantial and significant risk of absconding.  The Claimant does not, I accept, have a record as being a ‘serial absconder’. But the circumstances so far as his previous record is concerned involve criminal offending in relation to identity, the evasion of immigration control over a period 2008 to 2014, together, on the face of it, with having obtained on a false basis a visitor's visa in 2005. Having taken up the false identity that was eventually the subject of the criminal convictions, the Claimant made an application using it in 2008 claiming to be a different individual with a different nationality.  He maintained that position in an interview in 2011 and an appeal in 2012.  He used it in relation to a birth certificate.  He used it in relation to an application in 2014 and an appeal in July 2014.  I note too in this regard that bail was refused twice in this case on 17 November 2015 and 10 May 2016.  Although bail is not an application of the Hardial Singh principles (see Lumba at paragraph 118) it is appropriate, in my judgment, for the judicial review court to have regard to the bail position when considering for itself questions of abscond risk and re‑offending risk.  

24.	So far as the removability principle is concerned, during the 13 and a half month period, Miss Dehon for the Secretary of State submitted that the judicial review court can properly and ought in this case to give weight to the informed assessment by the relevant Home Office officials of the prognosis.  As Singh J recorded in Abraha at paragraph 33 (citing Sales J at paragraph 79 of MH [2009] EWHC 2506 (Admin)):

"Where a judgment about the availability of removal depended in a significant way upon an assessment of how a foreign government would react, the court will be slow to second‑guess the assessment in that regard which is made by the executive." 

25.	I accept that there is a proper basis for recognising a ‘latitude’ on the part of the Secretary of State in relation to that kind of informed assessment.  Where available to the court, such an assessment will be given appropriate weight.  I emphasise that because in the present case the contemporaneous reviews recorded the position so far as what was anticipated and expected was concerned.  Reviews described the period in which it was expected that an ETD would be obtained as being one to three months and stated the expectation that an ETD would be obtained.  The detention review of 30 March 2016 had commented: "I assume we are expecting a positive outcome of the [NADRA] interview." Then this assessment was recorded on 26 April 2016:

"Given the information provided pre‑interview, it is expected a document will be issued which will allow his removal from the United Kingdom."

26.	And on 24 May 2016:

i.	"As he entered the UK with entry clearance, I would expect a positive outcome."

27.	In all the circumstances - the wait of a further three months, having put all the relevant material to the High Commission and then on referral to NADRA, having assessed what it was appropriate to say to them and show them, and having assessed positively that it was expected that there would be a favourable outcome, and given the significant and substantial risk of absconding and linked risk of re‑offending – this was detention throughout the 13 and a half months which satisfied the duration, removability and diligence principles of Hardial Singh.  

The next eight months 
28.	On 6 June 2016 the Secretary of State received notification that the NADRA referral process had failed to produce the expected positive outcome.  A case record sheet dated 7 June 2016 refers to "the results received yesterday, this subject was not verified". It recorded that: "This case cannot be progressed until new biometric/computerised ID becomes available." I turn to consider the application of Hardial Singh during the period of eight months between then and the present.

29.	For the Secretary of State, Miss Dehon emphasises that although 14 months had already expired, the June to November 2015 period was one impeded by a groundless asylum claim.  She emphasises the abscond and re‑offend risks which remained in the present case.  She emphasises that there is no issue in relation to conditions of detention or impact on family life.

30.	She submits that in all the circumstances, there was throughout compliance with all of the Hardial Singh principles. I cannot accept that submission.  I am satisfied that there has been a breach of Hardial Singh in the eight month period after 6 June 2016 in the circumstances of the present case. In my judgment, this was immigration detention which crossed the line on the facts of the case so far as reasonable duration was concerned, having regard to all of the relevant factors.  Further and in any event, in my judgment, there was during this period what became apparent, objectively on the material before the Secretary of State or certainly should, viewed objectively, have become apparent, a want of removability within a reasonable time.  I am also satisfied that the Secretary of State is unable on the facts of the present case to establish that the diligence principle was being adhered to during this period.

31.	I will look separately, as I was invited by the Secretary of State to do, at the periods, firstly, after June 2016 up to about the end of 2016 and then, secondly and separately, the present position.

32.	So far as the period June 2016 onwards is concerned, the Secretary of State's submissions in support of compliance with the Hardial Singh principles emphasised two particular points, alongside those general points to which I have already referred.

33.	The first particular point was that the Secretary of State relied on the prospect of a section 35 prosecution for non‑cooperation by the Claimant. She pointed to the documents where there are various references to a section 35 prosecution being reviewed and considered. I accept that the documents refer to that as having been considered.  There are references in documents dated 19 July 2016 and 8 September 2016, by way of examples.  Eventually, it was recognised that section 35 was going nowhere in this case, as recorded on 24 November 2016.

34.	It is important, in my judgment, to appreciate that the references on the materials to non‑cooperation by the claimant all relate to the position back in 2015.  Specifically, so far as provision of documents and answering of questions is concerned, there are references in the records and contemporaneous materials to a lack of cooperation on or around 22 January 2015.  The chronology attached to the defence states that the Claimant was served with, but failed to respond to, a letter.  But more particularly in the same chronology, on 31 March 2015 the Claimant failed to provide an ETD form, the Defendant having completed one using biodata.  The Claimant's witness statement at paragraph 10 also describes his lack of cooperation at that time.  Subsequent references then refer to him having refused to provide documents, for example in a note dated May 2015.  There are then some references to a continuing failure of cooperation and, alongside those, references to a continuing failure to cooperate with the interview processes.  So far as those are concerned, the Secretary of State accepts that the many references in the monthly progress reports to the Claimant having refused to cooperate with interviews were mistaken.  He had cooperated from November 2015 onwards with interview processes. He had been interviewed on 25 November 2015 by the PHC and then had his NADRA interview on 29 February 2016.

35.	So far as section 35 is concerned, Miss Dehon for the Secretary of State accepted, when asked by me, that she could only rely on this point if she could show that there was continued default by the Claimant; that is to say some ongoing refusal to cooperate.  As she put it, "I would need to make that good".  In my judgment, she is clearly right to have accepted that that is the position. But in my judgment, it is very clear from the documents in this case and should have been clear to anyone who was considering the position that it could not be said that this Claimant was continuing to fail to cooperate, so far as the provision of information was concerned. He had not been asked for any further information.  There is nothing in any of the materials that I have been shown or been able to find that suggested he was asked for further information, having refused it in March 2015, until a form was provided to him on 14 November 2016 (which he completed within five days).  That form itself was provided to him one year after the original interview to the PHC and some nine months after the preparation of materials for the NADRA process.

36.	Viewed objectively, in my judgment, there is no basis on which section 35 can be relied on in this case in the context of the application of the Hardial Singh principles.  As soon as the point is examined, it disappears.  That should have been apparent to anyone who considered what the actual factual position was. So far as section 35 is concerned, I refer to Abdullah [2010] EWHC 259 (Admin) at paragraph 47.  In that case, Lord Carlile, sitting as a Deputy High Court Judge, explained that he had seen no evidence to justify the proposition that a section 35 prosecution would or even might have succeeded.  He concluded that it clearly did not.  That is, in my judgment, very much the position here.

37.	The second particular point on which the Secretary of State relied in this regard concerned step three under the Guide; that is to say the referral to the RLO.  A referral to an RLO did take place in the present case, but it did not take place until more than five months had elapsed after 6 June 2016.  It took place on 24 November 2016.  There is no explanation that I can find in the materials either contemporaneously or in any witness statement as to what steps were envisaged or pursued in that regard, nor with what prospect of success.  There is no assessment to which I can give any latitude in those respects.  But nor is there any answer to the point explained in the Guide, whose terms I have been asked to accept applied throughout.  As I have explained, the Guide describes the RLO step as being ‘on hold’ except in a case which is prioritised.  There is no evidence that this case was ever prioritised. Nor, it is right to say, does the Secretary of State rely on the RLO referral as a basis for justifying detention viewed at the present time.

38.	I accept Miss Dehon's submission that it is not fatal that things are taking longer than they should if there is an underlying good reason: see Abraha paragraph 34. But I cannot find any underlying good reason, still less diligent steps, either by reference to section 35 or the referral to the RLO. That conclusion, in my judgment, is fatal in this case so far as the period from June 2016 onwards is concerned, given that those were the two particular points relied on by the Secretary of State, subject only to this. I would accept that there was not an immediate breach of Hardial Singh principles on 6 June 2016. I accept that, objectively, there could be a justification for considering the position in the light of the 6 June 2016 notification from the High Commission.  In my judgment, what was needed on 6 June 2016 in the present case was the consideration and identification of urgent practical and effective steps and an assessment of their prospects of success. There are in the documents three further features of the case to which I will turn. But in my judgment, in all the circumstances and on the particular facts of this case, by the time of the detention review of 18 August 2016, 16 months into the immigration detention of the Claimant, the duration principle was violated.  The reasonable period, on the facts of this case, having regard to the relevant factors, was up.  There was also, by reference to the various points relied on, no expeditious diligence by that time.  In any event, it was apparent and sufficiently apparent by that time that the Claimant could not be removed within a reasonable time. So, the diligence principle and removability principle were also breached.

39.	I have said that there were three further features of the case in the documents, regarding the period after June 2016, and I will deal with them in turn.  It is right to say they were not at the forefront of Miss Dehon's submissions in relation to the period after June 2016 and, in my judgment, rightly so.

40.	The first feature was a query raised in relation to the old style passport. In a detention review dated 18 August 2016, the authorising officer comments that he has seen reference to an expired Pakistani passport.  He says this: "It's not clear whether any of this evidence has been submitted as part of the ETD pack." He then makes the observation that detention cannot be sustained for much longer without progress around documentation.  In my judgment, it was plainly right and proper to raise the question as to what documents had been provided to the Pakistan authorities.  But equally, the contemporaneous documents on the file make clear beyond any doubt that the Secretary of State had gathered such information as were considered to be relevant.  In particular, the expired Pakistani passport had been provided.  Indeed, that is not only recorded as a document having been produced to the Pakistan authorities.  It is a document to which reference is made when the Pakistan authorities responded to the Secretary of State to explain that they had drawn a blank, notwithstanding its provision.  There are many references in the contemporaneous materials which would and should have made clear on a review of the position what the answer to the question being raised was.

41.	The second feature on the documents is that there was evidently the prospect of the NADRA interview being re-run.  According to the materials before the court, a further NADRA interview was arranged for 17 October 2016.  The detention review of 11 October 2016 refers to that as an interview under the NADRA scheme.  But that interview, according to the materials, was cancelled. The summary grounds, confirmed as to factual accuracy by a statement of truth, tells me that the interview did not take place as the Pakistan High Commission stated they were unable to verify ID based on an old style passport.  This confirms that, as soon as the question was raised, the answer was clear that the case had reached a dead-end so far as the process under the Guide was concerned.

42.	The third feature on the documents was the idea that that the Claimant should give his 13 digit CNIC number or apply for it through an online process.  So far as failure to provide it is concerned, that was relied on by the Secretary of State at least from the time of a bail summary dated 5 May 2016, but that is premised on the Claimant knowing it and withholding it.  I accept Miss Apps' submission that there is no basis on the present case on which I can conclude, viewed objectively, that this was a case of deliberate obstruction so far as knowledge and withholding of a number is concerned.  Indeed, the Secretary of State now accepts in defending the judicial review that the position is that the Claimant may not have remembered his 13 digit number.

43.	Attention then turned to whether he could obtain it.  There are records which refer to the possibility of an online application.  That is a route which became the primary focus of two witness statements filed in this case by the caseworker.  But that too is not now a ground relied on, in relation to detention at the present time, so far as Hardial Singh is concerned.  The position there is that having raised the matter, the Secretary of State was met with the answer that the Claimant would need to satisfy certain prerequisites and in particular, among them, the identification of a blood relative with a relevant number.  The Secretary of State raised the fact that the Claimant had originally entered the UK on a visitor's visa referable to his UK‑based “sister”, but was met with the answer that that had been a false entry into the United Kingdom and there was no sister.  That, on the face of the materials, is the end of the road objectively so far as obtaining a number online is concerned, even leaving aside the other problems with the online route, described in the Claimant's solicitors letters and the witness statement of Mr Beagent.

44.	In my judgment, no significant weight can be placed on this avenue of online application for a CNIC number, in circumstances where it was identified very late in the day and promptly answered.  It was first recorded by the Secretary of State as a possibility in an internal note dated 21 October 2016 and then put forward in the summary grounds of 28 October 2016. It was then clearly answered, in my judgment, and promptly answered, in the Claimant's solicitor's letter of 2 November 2016.  The Secretary of State, in my judgment, clearly could and should have raised this prospect far earlier.  Had she done so, it would have become apparent far earlier that it provided no solution on the face of it. 

45.	For those reasons, none of those three features, in my judgment, can be relied upon so far as the period at least after 18 August 2016 is concerned. By that time, in my judgment, it would and should have been apparent, having identified any relevant further avenue, that the Hardial Singh principles were now being violated.

46.	I reach that conclusion notwithstanding that in the earlier period to which I have referred the process had been impeded by the Claimant's asylum claim, and notwithstanding what I have accepted was and continued to be a substantial and significant risk of absconding.  In all the circumstances of the present case, the abscond and re‑offend risk could only, in my judgment, be relied on to justify this immigration detention if they were in the nature of a ‘trump card’.  That, on the basis of the authorities, they are not: see for example Mahfoud at paragraph 6(vi).

47.	There is no benchmark or red line, as I have said.  The case law in this area ultimately identifies principles, to be applied on the facts and circumstances of individual cases. It also provides working illustrations of how these fact‑specific cases are determined. Those cases are no more than that. Having said that, I have been assisted by considering with Counsel the working illustration of Fardous in the High Court [2014] EWHC 3061 (QB), upheld on appeal by the Court of Appeal at [2015] EWCA Civ 931.  No case is ever going to be on all fours with another and I do not suggest for a moment that Fardous is. Moreover, Fardous is a case in which the learned judge identified a reduced abscond risk by the time of a later period of immigration detention, which was material to the balance that was struck on the facts of that case. In my judgment, that is not the case here. Nevertheless, what is at least of some illustrative relevance, in my judgment, is the following.
48.	Fardous was a case in which the Hardial Singh duration principle was breached, on the facts of that case, at the 14 month period.  It was an ETD case in which the judge accepted, as did the Court of Appeal, that an ETD in the end would be obtained.  I have not been asked to reach that conclusion and could not do so on the facts of the present case. What had happened in Fardous was that steps were being taken which looked promising at the nine month stage, but then suffered a very clear setback after 12 months, at which point there was a lack of progress. The High Court judgment records that in the circumstances of that case, a careful review at the 12 month period would have reached particular conclusions: first, that there was a reduced risk of absconding. Second, that the detention must be brought to an end short within a short further time.  During that time, all possible steps must be taken to secure the ETD and taken vigorously.  There was a prospect of obtaining the ETD within the next two months and it was reasonable to allow a further two months, but after that further two months, the judge, on the facts of that case, concluded both that the duration principle was violated and moreover, the Claimant was no longer removable under the Hardial Singh removability principle within a reasonable period. I note while referring to Fardous that there was a later flurry of activity in the final month of the eight months which the judge held to be unlawful.  There was, later on, progress and eventually an ETD was issued.  The Court of Appeal reviewed the position.  They did not need to or did not consider whether the judge's conclusions were correct, but they upheld those conclusions as having been open to him. 

49.	For the reasons I have explained, I have reached the conclusion that in the light of the setback of June 2016, there was a need for vigorous pursuit of steps in a short further period.  But in the light of the lack of progress at that time and when those steps came to be considered, I have reached the conclusion that a further period of two months is the most that could be identified as justifiable under the relevant Hardial Singh principles. 

50.	As I have indicated, I was asked by the Secretary of State to consider the present position separately and I turn to do so.  The Secretary of State submits that this is immigration detention which is Hardial Singh compliant as at today.  She relies in that regard on a NADRA re‑interview which has now taken place.

51.	What happened was this. A form was provided to the Claimant on 14 November 2016 in the context of the RLO referral and completed by him on 19 November 2016. That form was included in the ETD application pack which had previously been produced and revised at relevant earlier dates.  A further NADRA referral was sought by the Secretary of State and the case was accepted for a NADRA re‑interview.  The Secretary of State, through the evidence of Miss Crozier, emphasises that not all requests are accepted under the NADRA process.  All of these are steps that were taken following the grant of permission for judicial review on 8 November 2016.  The Secretary of State's position is that this is expeditious diligence; that these are diligent steps which factor into the conclusion that reasonable time has not expired; and that they have the consequence that this Claimant is now removable within a reasonable time. She says there is no present Hardial Singh breach and the Claimant’s ongoing detention is lawful.

52.	I do not accept those submissions.  The essential point that is relied on is that the form elicited from the Claimant in November 2016 contained information which was materially different from that which had been put forward previously under the NADRA process.  I was shown the form filled out in November by the Claimant.  Comparison was made between it and the asylum interviews which he had given in 2015 which had resulted in information made available by the Secretary of State with the application pack: for the High Commission interview, November 2015, and then the NADRA interview, February 2016.

53.	There are examples in the case law where re‑interviews take place in the light of further information. I was shown Rehman [2013] EWHC 1280, paragraphs 22, 25, 35 to 36, and I was shown Abdullah, paragraph 32.  Miss Dehon accepts, correctly in my judgment, that she could not rely on a re‑interview stage in the absence of materially different information being put forward.  If it had simply been a re-run of the NADRA step on the basis of the same material, that would not suffice.  But she urges on me that three key differences can be identified: one relating to the Claimant's father's name; one relating to his mother's name; and one relating to his brother's date of birth.

54.	The first difficulty I have is that there is no contemporaneous assessment in the documents that I have been shown or can find which analyses the significance of those matters, still less which assesses the prognosis that is said to arise from them. The closest that the evidence comes is in Miss Crozier's first witness statement at paragraph 14 where she says that the new NADRA process will be provided with the form completed by the Claimant in November 2016 which gives details of his birth in Pakistan, his address details in Pakistan and address details for family members. She makes no mention of any of the three matters that are urged as materially different.  She then says: 

i.	"Following this new interview, NADRA will assess the Applicant and determine whether his national statement is confirmed, which could take up to three months." 

55.	The contemporaneous records in the case make reference to the NADRA process as an attempt to consider the Claimant again.  A record of 26 January 2017 states: 

i.	"They will now attempt to verify his identity using the information he has given."

56.	Notes dated 24 November 2016 state that:

i.	"There is further information for the PHC to work with, considering they have not received this information before when interviewing the Applicant." 

57.	My task is to consider this material, in the absence of any evidence that would assist me so far as any informed assessment or explanation is concerned. I have had the benefit of submissions and I have the evidence. So far as the parents' names are concerned, the position is this. Originally the ETD pack, as revised in the light of the Claimant’s asylum interviews, gave the father's name as Wali Muhammad (the asylum screening interview had said Haji Wali Muhammad) and the mother's name as Saeeda Begam (the screening interview having given the name of Saeeda Begam).  In his latest November 2016 information, the Claimant gives the name Mr Wali Muhammad and Zolaikha Bagam as his mother. In my judgment, those matters cannot properly and objectively be said to be differences of such materiality as would support the conclusion that, viewed at the present, there is a prospect on that basis of the NADRA interview reaching a positive outcome.  The description of the father's name seems to me to be entirely consistent, one emphasising "Mr".  If that and all the other relevant circumstances led to the drawing of a blank, I find it impossible to see how a difference in the description and spelling of the mother’s names stands to make any material difference.

58.	So far as the brother is concerned, the asylum screening interview gave a date of birth of 23 February 1990 and the November 2016 form gives a date of birth of 28 February 1995.  The Secretary of State's position is and has to be that that new information regarding the brother and his date of birth stands to provide a sufficient prospect of the NADRA process reaching a positive conclusion where previously it drew a blank.  But in my judgment, it is impossible for the Secretary of State to point to that difference as material on the facts of the present case.  That is for this reason. Notwithstanding that the necessary application pack was produced, and notwithstanding that it was revised following the relevant asylum interviews, no description of the brother, still less his date of birth, featured in the biodata and family information that the Secretary of State thought relevant to put forward through the NADRA process.  In circumstances where the Secretary of State was not herself suggesting that the brother, still less his date of birth, was going to be significant and material in the NADRA process, I find it impossible to see how the fact that a different date of birth is given later can become a material difference in relevant information so far as that is concerned.

59.	I emphasise, as I have already said, that none of the material that is before me contains any assessment which suggests the contrary.

60.	As at the present, in my judgment, the Hardial Singh principles as to duration, removability and diligence are and remain violated on the facts of the present case. In relation to waiting a further three months after 25 January 2017 – given the nature of what is being put forward to NADRA, it having belatedly sought and belatedly included against what was assessed previously as being been appropriate to tell the authorities; and absent any positive informed assessment of the prospects or any explanation as to why they have changed or what they now are – I find it impossible to conclude that there is a prospect of removability on this basis within a reasonable time.  A further three months’ detention, on all the facts and circumstances of this case, where the Secretary of State has had and missed so many opportunities previously, is not in my judgment justifiable in Hardial Singh terms.

61.	There is though, in any event, a problem with all of that.  In my judgment, once the duration principle of Hardial Singh is found to have been previously violated, it is not open to the Secretary of State to argue that the ongoing detention thereafter and the present detention at the time of a hearing becomes lawful because steps are finally taken which are said to be diligent and give rise to a change of circumstances.  I can quite see that so far as the diligence principle is concerned, past failure of diligence might lead to damages for past periods of detention while, if the other Hardial Singh principles are complied with at the present, it may follow that the present detention is lawful. But once the reasonable time has expired to violate the duration principle, I see no room for that conclusion. My analysis on that point is supported by the facts and circumstances of the Fardous case where, as I have explained, the final month of the eight months involved material changes of circumstances and yet it was the entirety of the eight months that was held to be unlawful detention by the High Court, upheld by the Court of Appeal. I have been shown no authority that would support the conclusion that the Secretary of State can posit a re-arrest to justify present detention in a case in which the Hardial Singh duration principle has expired.  But in any event, none of that would assist the Secretary of State in the circumstances of the present case, because I am quite satisfied that on the basis of the present circumstances and on the basis of the particular facts of this case, Hardial Singh principles (ii), (iii) and (iv) are each violated so far as the present circumstances are concerned.  It is all too little, too late and too slow.

62.	I add two points. First, notwithstanding the reference in the Guide to the prospect of seeking expedition and a priority review by NADRA, there is nothing before me that suggests anything other than the three months’ duration described in the guide.  That is the period given by the Secretary of State in the evidence. Secondly, conspicuous in the recent detention reviews in the present case are references to expectations of obtaining an ETD as have been assessed at being ‘over six months’ away.  It may be that a different assessment would be reached by the Secretary of State now (I know not), but there is no informed assessment before the court to which I can give any latitude. 

63.	In conclusion, this is immigration detention, for all the reasons which I have given, which was incompatible with Hardial Singh principles from 18 August 2016, viewed objectively, on the facts as they appeared to the Secretary of State.  Further and in any event, and even if I am wrong about that, it is detention today which is incompatible with Hardial Singh principles at present. For those reasons, the claim for judicial review succeeds.  
64.	THE DEPUTY JUDGE:  Yes.  Miss Apps.
65.	MISS APPS:  My Lord, in terms of relief, may we turn to A29 of the bundle.  This is where I set out in our grounds of claim the relief that was being sought.  (Pause)
66.	In light of the judgment that has been given ‑‑  
67.	THE DEPUTY JUDGE:  A29?
68.	MISS APPS:  Sorry, A21.  It is paragraph 49 of the grounds of claim.  
69.	In light of the judgment that has been handed down, the Claimant seeks a declaration that his detention has been unlawful since 18 August 2016 ‑‑
70.	THE DEPUTY JUDGE:  Yes.
71.	MISS APPS:  ‑‑ and a mandatory order for release from detention.  Miss Dehon and I spoke before the hearing.
72.	THE DEPUTY JUDGE:  Yes.
73.	MISS APPS:  Miss Dehon informed me that she would intend to be able to release the Claimant earlier than this, but as a long stop, by 22 February 2017.  So a mandatory order for his release from detention by 22 February 2017.  This will be subject to electronic tagging.  Accommodation to be provided by NASS.
74.	THE DEPUTY JUDGE:  But in terms of my order ‑‑ 
75.	MISS APPS:  You just need a mandatory order for his release from detention by 22 February 2017.
76.	THE DEPUTY JUDGE:  Miss Dehon, what is the Secretary of State's position on relief in the light of the judgment? 
77.	MISS DEHON:  My Lord, the overall position is that it seems sensible for the mandatory order for release to be made and it would be helpful to specify a date ‑‑ 
78.	THE DEPUTY JUDGE:  Right.
79.	MISS DEHON:  ‑‑ even though if, for unforeseen circumstances, ie NASS accommodation is not available, for example, that would necessitate us coming back ‑‑ 
80.	THE DEPUTY JUDGE:  Liberty to apply.
81.	MISS DEHON:  ‑‑ to court.  So liberty to apply would be the next request.  But it does seem sensible in the circumstances to make the order in those terms.
82.	THE DEPUTY JUDGE:  So a declaration that the Claimant's detention has been unlawful from 18 August 2016.
83.	MISS DEHON:  My Lord, yes.
84.	THE DEPUTY JUDGE:  A mandatory order for the Claimant's release from detention by 22 February 2017.
85.	MISS DEHON:  Yes.
86.	THE DEPUTY JUDGE:  Liberty to apply.
87.	MISS DEHON:  Liberty to apply.  I would not suggest your Lordship putting anything else in the order in terms of address or electronic tagging.
88.	THE DEPUTY JUDGE:  No.  Conditions are not a matter for me.  Thank you very much.
89.	MISS APPS:  My Lord, if I could request an order transferring the damages claim to the Queen's Bench Division in the usual way.
90.	THE DEPUTY JUDGE:  Quantum transferred to the Queen's Bench Division.
91.	MISS APPS:  Yes, damages claim transferred to the Queen's Bench Division.
92.	THE DEPUTY JUDGE:  Any observations, Miss Dehon? 
93.	MISS DEHON:  No. 
94.	THE DEPUTY JUDGE:  The claim for damages to be transferred to the Queen's Bench Division to be resolved, if not agreed.
95.	MISS DEHON:  Yes.
96.	MISS APPS:  Yes.
97.	THE DEPUTY JUDGE:  Thank you.
98.	MISS APPS:  Then the Claimant seeks his detailed assessment of his legally aided costs.
99.	THE DEPUTY JUDGE:  Any observations on costs, Miss Dehon? 
100.	MISS DEHON:  No.
101.	THE DEPUTY JUDGE:  The Claimant to have his costs, to be the subject of the usual legal aid detailed assessment.  (Pause)
102.	Can you submit an order between you?
103.	MISS APPS:  Yes, we can.  We were ‑‑ 
104.	THE DEPUTY JUDGE:  What do you want me to say about costs?
105.	MISS APPS:  That the Claimant be awarded his costs to be assessed, if not agreed.
106.	THE DEPUTY JUDGE:  Yes.
107.	MISS APPS:  So it would be assessed by detailed assessment.
108.	THE DEPUTY JUDGE:  The Defendant to pay the Claimant's costs of the judicial review proceedings, to be the subject of legal aid detailed assessment, if not agreed.
109.	MISS APPS:  If not agreed, yes. 
110.	THE DEPUTY JUDGE:  Yes.  Thank you.  Anything else?
111.	MISS APPS:  My instructing solicitor has just corrected me.  It is not subject to legal aid assessment.  It is subject to detailed assessment, if not agreed.
112.	THE DEPUTY JUDGE:  Subject to detailed assessment, if not agreed. 
113.	MISS APPS:  If not agreed.
114.	I will draw up a draft of the order and send it to Miss Dehon. 
115.	THE DEPUTY JUDGE:  Would you do that?  Would you e‑mail that to my chambers e‑mail address? 
116.	MISS APPS:  Yes, I will do.
117.	THE DEPUTY JUDGE:  Would you also, please, make sure you take an e‑mail address?  We have e‑mail addresses here on the slip, so that we are all copied in on that.  
118.	Anything else?
119.	MISS APPS:  No, my Lord.
120.	THE DEPUTY JUDGE:  May I thank both counsel, instructing solicitors and all team members on both sides for the assistance that I have had from you all in the preparation and presentation of the argument in this case.  Thank you very much.