Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 122

P202/15 & P735/14

 

 

 

OPINION OF LORD CLARKE

in the petitions (2)

by

AFSHIN ADAMIAT (AP)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for judicial review of

(a) the decision of the respondent of 16 January 2015 refusing to treat the petitioners further submissions as a fresh claim;  and

(b) the decision of the respondent to continue to detain the petitioner

 

Petitioner:  K Campbell QC, Winter;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General for Scotland

9 September 2015

[1]        The petitioner has brought two petitions for judicial review against decisions of the respondent.  In the first of these (P202/15) (the fresh claim petition) he seeks to attack a decision of the respondent not to treat further submissions made on his behalf as a fresh claim in respect of his asylum status, a previous claim having been rejected by an Immigration Tribunal. 

[2]        The second petition (P735/14) (the detention petition) seeks review of the respondent’s decision to keep him in detention.  The petition also seeks ancillary orders including an award of damages for unlawful detention. 

[3]        By interlocutor dated 16 April 2015 the Lord Ordinary ordained that the first hearings, in both petitions, should take place together on 25 June and one ensuing day.  At the date of that interlocutor the petitioner remained in detention.  At the commencement of the first hearings before me on 25 June 2015, I was informed that the petitioner had been released from detention on 22 May 2015.  As a result, it was a matter of agreement between both sides of the bar that, in relation to the detention petition, I should determine the question as to whether the detention of the petitioner had been unlawful and, if so, for what length of time.  If I were to find in his favour in that respect the detention petition should be continued for a further hearing on the question of the quantum of any damages to which he might be entitled to in that event. 

[4]        As regards the fresh claim petition I was asked to dispose of it on its merits, the respondent’s position being that the petition should be dismissed. 

[5]        The submissions made to me in relation to these two petitions, from time to time, overlapped.  The immigration, and some of the personal, history of the petitioner was clearly of materiality for the consideration of both petitions.  I, accordingly, intend, in this single opinion, to deal with both cases. 

[6]        The relevant history of the petitioner for the purposes of both sets of proceedings is, in summary, as follows. 

[7]        The petitioner is an Iranian who was born on 1 September 1976.  He claims to have entered the United Kingdom clandestinely in 2000.  On 1 October 2000 he claimed asylum.  He avers that “unbeknownst to the petitioner he was asked to complete a state of evidence form”.  He was initially accommodated and supported by the Home Office in Huddersfield for approximately one and a half years.  As he had failed to complete the statement of evidence form, his claim for asylum was refused on 26 February 2001.  He appealed and his appeal was dismissed on 8 August 2002.  He avers that he was unaware of that appeal hearing and did not attend it.  His benefits were stopped on 4 October 2002.

[8]        He was convicted of theft in June 2003 and was conditionally discharged for six months.  In October 2005 he was convicted of three counts of theft and was sentenced to eight weeks imprisonment.  In January 2007 he was again convicted of theft on two occasions.  He was conditionally discharged and found liable to pay compensation.  In March 2007 he was once more convicted of theft and also with assault with intent to resist arrest and failing to surrender to custody.  He was sentenced to three months.  He was, furthermore, convicted of offences of theft, failing to surrender to custody and two breaches of a conditional discharge.  The petitioner was sentenced to one month’s imprisonment on each charge.  In January 2008 he was again convicted of theft and was sentenced to perform 80 hours of unpaid work.  In August 2008 he was ordered to perform a further 10 hours of unpaid work in respect of breach of his community orders.  In July 2008 he was convicted of theft, criminal damage and failure to surrender to custody.  A drug treatment order was imposed but was subsequently varied to three months’ imprisonment.  In May 2010 the petitioner was again convicted of two charges of theft and one charge of failing to surrender to custody.  He was sentenced to two months in respect of each of the theft convictions.  In May 2011 he was convicted of criminal damage and was conditionally discharged.  His pattern of offending then became significantly more serious and on 20 June 2011 he was convicted at Bradford Crown Court of burglary (aggravated breaking and entering) for which he was sentenced to three years’ imprisonment.  In a detention review document 7/4 of process it is pointed out “the aggravating features of the burglary were that he burgled the victim’s house, held the victim at knife point and sent an accomplice to try to obtain money from a cashpoint using the victim’s card”.

[9]        On 7 July 2012 the petitioner was sent a notice of liability to deportation.  On 27 September 2012 the petitioner was served with an asylum refusal letter and deportation order.  On 3 October 2012 the petitioner appealed the asylum and deportation decisions.  The appeals were refused on 9 January 2013.  Inter alia, the immigration judge found that the petitioner’s failure to pursue his claim and to attend a subsequent appeal hearing in 2002 were inconsistent with his claimed need of international protection.  The immigration judge had regard to the petitioner’s record of offending.  As regards to substance of the petitioner’s claim for asylum, it was accepted by the immigration judge that the petitioner is a national of Iran of Azeri ethnicity but that he had not, as claimed by him, left Iran illegally nor that his family were associated with communists and were consequently of adverse interest to the Iranian authorities.  The immigration judge furthermore held that, contrary to what the petitioner had claimed, he had not been arrested or ill‑treated by the Iranian authorities nor that he had deserted from military service and was therefore wanted by the Iranian authorities.  The immigration judge, furthermore, found that the petitioner, contrary to what he claimed, did not spend a period of time in hiding prior to leaving Iran and that he had not been in fear of prosecution or serious harm as he left Iran.  The petitioner was found by the immigration judge not to be a credible witness.  He was found to be prepared deliberately to mislead the tribunal for his own ends.  The petitioner’s position as to his reasons for leaving Iran were found to be inconsistent in material respects. 

[10]      On 30 December 2012 the petitioner was transferred to HM Prison Leeds.  In May 2013 the petitioner was diagnosed as suffering from hepatitis C.  He submitted a bail application on 8 June 2013 which was refused.  Bail was again refused on 3 October 2013.  The petitioner had informed the United Kingdom authorities, on 18 July 2013, that he did not wish to return voluntarily to Iran.  He was advised by those representing the respondent to contact relations in Iran to help facilitate his return to Iran.  The petitioner is not in possession of a valid travel document.

[11]      As a result of a breakdown in diplomatic relations between Iran and the United Kingdom, the Iranian Embassy in London closed in November 2011.  In her answers to the detention petition, the respondent avers in answer 5 inter alia,

“Since the closure of the Iranian Embassy in London in November 2011, Iranian nationals have been able to acquire travel documents from Iranian diplomatic missions in other countries or by approaching Iranian authorities directly in Tehran.  Iran appointed the Sultanate of Oman as its Protecting Power in the United Kingdom on 16 July 2012.  The Sultanate of Oman opened an Iranian Interest Section within the Iranian consulate building in London.  The Sultanate of Oman provided consular assistance to Iranian nationals in the United Kingdom.  Iranian nationals were able to approach the Consulate for assistance.  In November 2013 the United Kingdom and Iran appointed non-resident Chargè d’Affaires.  Discussions took place between the respective officials on a number of issues including the return of Iranian nationals in the United Kingdom.  On 20 February 2014 Iran began operating a limited consular service to Iranian nationals from the Iranian consulate in London, including the provision of travel documentation for Iranian nationals who wish to travel to Iran or are complying with removal directions.  Iranian officials would and will travel to immigration removal centres or prisons to interview detainees for that purpose.  Discussions between the respective governments continued on a regular basis, including in respect of the arrangements for the return of Iranian nationals who have no lawful basis to remain in the United Kingdom.  The petitioner only renewed his asylum claim after the commencement of these proceedings.”

 

In his detention petition these averments are said by the petitioner to be not known and not admitted.

[12]      The petitioner’s detention petition was lodged in July 2014 and a hearing for interim orders took place before Lord Kinclaven on 24 July 2014.  His Lordship refused, in hoc statu a motion for interim liberation.  On 11 August 2014, those acting for the petitioner made further written representations to the respondent in support of the petitioner’s asylum application.  The respondent, having considered these representations, by letter of 17 December 2014 concluded as follows

“Your further submissions have been fully considered but I have concluded that for the reasons explained above that you do not qualify for leave to remain in the UK on any basis.  I have also considered for the reasons given above that your further submissions do not amount to a fresh claim.  I have further concluded for the reasons explained above that there are no grounds on which to revoke your deportation order.”

 

The letter went on to specify the help and advice which would be made available to the petitioner should he seek to leave the United Kingdom voluntarily.

[13]      A pre‑action protocol letter was sent to those representing the respondent on 5 January 2015.  The respondent replied on 16 January 2015 affirming her decision which had been contained in the decision letter of 17 December 2014.  In February 2015 the petitioner lodged the fresh claim petition with which the present proceedings are concerned.

[14]      On 29 January 2015, the Lord Ordinary, Lady Wise, having been informed that the fresh claim petition was to be brought, heard another motion for interim liberation which she refused in hoc statu.  I was advised that her Ladyship arrived at that decision after a full day of submissions having been made on both sides of the bar.

[15]      The petitioner’s continued detention was reviewed from time to time, on behalf of the respondent.  In a detention review documents dated 1 May 2015, 7/15 of the detention process it was stated, inter alia

“Mr Adamiat is considered to pose a risk of harm and absconding.  However we appear to have hit a barrier on documentation and although the relationship with the Iranian authorities is improving, it is not clear that we will be able to resolve this in the short term.  So we must consider release.  I note that we need to consider healthcare angle to this but we should do so quickly with a view to coming to a conclusion within the week.”

 

As had been noted, in the event, the petitioner was released on a release order dated 21 May 2015 and he was served with a notice of restrictions imposing reporting requirements and prohibiting his entering employment or carrying on business in the UK. 

[16]      There was lodged on behalf of the respondent two affidavits of Mark Griffiths who was described as “assistant director in the Returns Logistic section of Immigration Enforcement of the Home Office”.  These sworn affidavits are dated 18 February and 24 June respectively.  In the first of affidavits Mr Griffiths affirmed that

“(2)      Iranian nationals who have no lawful basis to remain in the United Kingdom are able to apply to the Iranian Consulate in London for an emergency travel document to facilitate return to Iran. 

 

(3)        Since the closure of the Iranian Embassy in London in November 2011, Iranian nationals were able to acquire travel documents from Iranian diplomatic missions in other countries e.g. Ireland or France or by approaching Iranian authorities directly in Tehran.  Iran appointed the Sultanate of Oman as its Protecting Power in the United Kingdom on 16^th July 2012 and shortly after this the Sultanate of Oman opened an Iranian Interest Section, located in the Iranian Consulate building in London.  This provided limited consular assistance to Iranian nationals.  Iranian nationals were able to approach the Consulate for assistance in a private capacity in the absence of a formal agreement with the UK on how the Consulate operates.

 

(4)        The UK and Iran both appointed non-Resident Chargè d’Affaires on 11 November 2013.  The UKs non-Resident Chargè d’Affaires to Iran, Mr Ajay Sharma undertook his first visit to Tehran on 3^rd December 2013.  Since then he has undertaken a number of visits, as has his Iranian counterpart.  During these visits Mr Sharma has held discussions with the Iranian Ministry of Foreign Affairs on a range of bilateral issues, including the return of Iranian nationals who have no lawful basis to remain in the UK.

 

(5)        On 20^th February 2014, Iran began operating a limited consular service to Iranian nationals from the Consulate office in London.  Iranian consular officials have been providing consular services including the provision of travel documentation for Iranian nationals who wish to travel to Iran.  The Consulate will consider applications for emergency travel documents from Iranian nationals who wish to return home voluntarily, either by complying with removal directions or seeking voluntary departure.  The Iranian Consulate has agreed to issue a number of travel documents to individuals in these circumstances.

 

(6)        Applicants for an emergency travel document can attend the Iranian Consulate for an interview with consular facilities.  Iranian consular officials can also travel to immigration removal centres or prisons around the country to interview detainees, if required to. 

 

(7)        Since February 2014 officials from the Home Office have met regularly with representatives from the Iranian government on February 2014, 9^th May 2014, 10^th July 2014 and 16^th December 2014.  Meetings continue between Home Office and Foreign and Commonwealth Office officials and representatives from the Iranian government to discuss arrangements for the return of Iranian nationals who have no lawful basis to remain in the United Kingdom.  The last meeting was held in London on 21^st January 2015 and further meetings are planned.”

 

In the second of the two affidavits Mr Griffith affirmed inter alia

“(2)      I make this statement to supplement my previous statement sworn on 18^th February 2015.

 

(3)        It remains the case that Iranian nationals who have no lawful basis to remain in the United Kingdom are able to apply to the Iranian Consulate in London for an emergency travel document to facilitate return to Iran. 

 

(4)        Meeting have continued between the Home Office and Foreign Office officials and representatives from the Iranian government to discuss the possibility of returning Iranian nationals who have no lawful basis to remain in the United Kingdom.  The last meeting took place on 8 June.”

 

Fresh claim petition
[17]      I now turn to deal with the fresh claim petition.

[18]      The further submissions of 11 August 2014, from the petitioner’s agents, were accompanied with various documents which included a document which bore to be an Iranian court citation with a certified translation, and a document which bore to be a statement from the petitioner’s sister Behnaz Ademiat, with a copy of her passport.  There were also included various letters of reference and certificates, supporting case law and country information references, and a copy of the previous asylum appeal decision.  The submissions made to the respondent, on behalf of the petitioner, relied on the petitioner’s alleged desertion from the Iranian army, his ethnicity as an Azeri and his illegal exit from Iran.  The said court citation bore to be dated 1 December 2013 and was said to be in respect of the petitioner’s non‑attendance at the Islamic Revolutionary Court.  The petitioner’s sister, in her said statement, sought to explain how this citation had been obtained. 

[19]      The further submissions went on to refer to the case of SB (Risk on return – illegal exit) Iran CG [2009] UKAIT 00053 for the proposition that a person who had left Iran when facing court proceedings (other than ordinary civil proceedings) may be at risk, on return, although it was accepted that much would depend on the particular facts relating to the offence or offences involved, and other circumstances.  It was contended that the more the offences for which a person faced trial were likely to be viewed as political, the greater the level of risk to him on return.  In article 7 of the fresh claim petition it is averred, on behalf of the petitioner as follows

“Given the emphasis placed by the expert report and country information on the decree of risk varying according to the nature of the court proceedings, being involved in ongoing court proceedings is not in itself something that will automatically result in ill‑treatment, rather it is properly considered as a risk factor to be taken into account with others;  that being a person involved in court proceedings in Iran who has engaged in conduct likely to be seen as insulting either to the judiciary or the justice system or the government or to Islam constitutes another risk factor indicating an increased level of persecution or ill‑treatment on return.”

 

Reference was made to US State Department 2013 Country Report on Human Practices:  Iran dated 27 February 2014 and Amnesty International Annual Report 2013:  Iran dated 22 May 2013.

[20]      In a letter dated 17 December 2014 the respondent set out her consideration of the foregoing material and its supporting contentions and reviewed the petitioner’s immigration history to date.  She noted that the petitioner was maintaining that the appeal determination of 9 January 2003 was flawed and should be reconsidered.  It was further noted that permission to appeal against the determination of 9 January 2003 was refused on 25 April 2003 on the ground that

“The First‑tier Tribunal gave cogent reasons for not being satisfied that the appellant would be at a real risk of serious harm on return to Iran having found the appellant not to be a credible witness.”

 

[21]      The respondent did not consider that the court citation together with the statement from the petitioner’s sister and a copy of her Iranian passport could be relied upon, and that they did not add anything, in any event, further to his claim.  Consideration was given to various certificates and references submitted.  It was noted that these pre-dated the tribunal’s judgment in the appeal and that, in any event, nothing in them placed any question mark over the Tribunal’s judgment.  The respondent stated that the material before her did not demonstrate that the petitioner would be persecuted if returned to Iran due to his allegedly having left Iran illegally.  Nothing, it was considered, was added to the petitioner’s claim, based on article 8 of ECHR, which had been adjudicated upon by the tribunal.

[22]      At page 5 of the letter the respondent stated

“Your raising of R (MA and TT) v SSHD [2010] EWHC 2350 (Admin) has also been noted as has your concern as to whether the Iranian consulate will grant travel documentation.  However, it is noted that the Iranian consulate is willing to provide consular assistance to those who wish to return to Iran voluntarily.  In your particular case it is noted that you became (sic) appeal rights exhausted on 25 April 2013.  You have therefore no basis to remain in the United Kingdom and it is expected that you should take all available opportunities to return to Iran.  It is not therefore accepted that R (MA & TT) v SSHD [2010] EWHC 2350 (Admin) adds anything further to your claim.”

 

At page 7 of the respondent’s letter the respondent wrote

“As your submissions do not create a realistic prospect of success before an Immigration Judge, they do not amount to a fresh claim.

 

Conclusion  In accordance with the published Home Office Asylum Policy Instruction on Further Submission, your asylum and human rights claim has been carefully reconsidered on all the evidence available, including the further submissions and the previously considered material.  I have also taken into account any more recent relevant case law and any country information that may apply to your current situation.

 

I have concluded that your submissions do not meet the requirements of paragraph 353 of the Immigration Rules and do not amount to a fresh claim.  This is because the new submissions taken together with the previously considered material do not create a realistic prospect of success.  This means that it is not accepted that, should this material be considered by an Immigration Judge, your submissions would result in a decision to grant you asylum, Humanitarian Protection, limited leave to remain on the basis of your family or private life or Discretionary Leave for the reasons set out above.”

 

[23]      As previously noted, those acting for the petitioner submitted, on 5 January 2015 a pre‑action letter.  In reply the respondent wrote, on 16 January 2015 having considered the specific points which were raised in the petitioner’s agent’s letter of 5 January.  Senior counsel for the petitioner explained to the court that it is the decisions contained in both the letters of 17 December 2014 and the letter of 16 January 2015 which are attacked in the fresh claim petition.  In her letter of 16 January 2015 the respondent accepted that the petitioner’s representatives had correctly said that the respondent’s department were wrong in their letter of 17 December in suggesting that only copies of certain documents had been produced and that it was specifically noted that the court citation from Iran appeared to be original.  She also noted that the contention was being made that her department had erred by effectively concluding that the petitioner had not been believed because the documents he relied upon had not been accepted as adding anything to the case.  She continued at paragraphs 3 and 4 of the letter to set out as follows

“(3)      In view of the above your client’s case has been reconsidered again and in particular your letter dated 11 August 2014 and it is accepted the original purported Court Citation was provided by your client was confirmation of its translation from Global Language Services dated 23^rd June 2014.  It was noted that the translation of the court citation states that it was issued on 1^st December 2013 with a citation being for 14^th December 2013.

 

(4)        With the above in mind the Current Country Information and Guidance report for Iran dated 23^rd September 2013 provides the following objective information on the official procedures whereby such court summons are served...”

 

The respondent then set out, in some detail, extracts from a Danish fact finding report 2013 which described the procedures for the issuing and serving of summonses in Iran.  It should be noted that the procedures, so described, do not appear significantly different from the procedures that would be adopted for such purposes in this jurisdiction.  At paragraph 6 of the letter of 16 January 2015 the respondent wrote

“In your client’s screening interview (SI) dated 2^nd April 2012 your client stated that he left Iran in the Summer of 1995 and arrived in the United Kingdom in 2000 (SI2.1 and 2.5).  Your client further stated that he knew that a summons had been issued against him by the Iranian Revolutionary Guard after he had deserted the army (SI5.2).  It is noted that your client claims to have deserted the Army and left Iran in 1995.  It is not accepted that the authorities would issue a court summons on 1^st December 2013 in relation to his desertion from the army and alleged events some 19 years later.  As can be seen from the above objective evidence, after being summoned several times, the individual’s trial may commence in their absentia and accordingly it is not accepted that the authorities would still be issuing court summons on your client’s family members over such a prolonged period of time for his attendance at court, rather he would be tried and if convicted/sentenced in absentia.”

 

At paragraph 7 the respondent continued

“The document and statement from your client’s sister Behaz Adamiat and her Iranian passport have again been considered in line with all the objective evidence and with the principal set out in Tanveer Ahmed (2002) UKIT 00439 which states that:  the burden of demonstrating reliability of documents adduced in an asylum case lay on the applicant.  This has not been achieved in your client’s case.  This is because it is considered that in taking account the time lapse between your client’s alleged crimes in Iran and the issuing of the purported court summons, your client’s sister’s evidence must be treated with a certain amount of circumspection and a judgement on the court summons veracity cannot be made in isolation.  It was also considered the statement your client made have to be considered in line with the Immigration Judge’s judgment as to your client’s lack of credibility.”

 

[24]      It was a matter of agreement that the law in relation to “fresh claims” was to be found in the judgment of Buxton LJ in WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337 in particular at paragraphs 6-12 of his judgment.  In particular his Lordship at paragraph 11 held that a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists had to address the following matters:

“First, has the Secretary of State asked himself the correct question?  The question is now is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return:  see para 7 above.  The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry;  but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind.  Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirements of anxious scrutiny?  If the court cannot be satisfied that the answer to both of these questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”

 

Senior counsel for the petitioner also referred me to Dangol v Secretary of State for the Home Department [2011] SC 560 particularly at paragraphs 7 and 9 with the regard to the meaning and application of the phrase “anxious scrutiny” in such a context.  He referred me also to R (on the application for AK (Sri Lanka)) v Secretary of State for the Home Department [2010] 1 WLR 855 at paragraph 34 where Laws LJ set out what he considered to be meant by “realistic prospect of success” in such a context.  His Lordship said:

“A case which is clearly unfounded is one with no prospect of success.  A case which has no realistic prospect of success is not quite in that category;  it is a case with no more than a fanciful prospect of success.  ‘Realistic prospect of success’ means only more than a fanciful such prospect.”

 

Reference was also made to SB referred to above, at paragraph 57 for summary of risks faced by immigrants returning to Iran, particularly with regard to their involvement in court proceedings there.  As regards to how the decision maker, in such a case, should deal with issues as to the authenticity of documents, reference was made to the judgment of Sullivan J (as he then was) in R (Gomez-Salinas) [2001] EWHC 287.

[25]      Relying on those foregoing authorities, senior counsel’s submission was that the respondent had failed to ask the correct question, namely whether there was a realistic chance of an immigration judge, applying anxious scrutiny, accepting that the petitioner was at real risk of persecution and that the test to be met by petitioner in such a case was a relatively modest one.  While SB (Iran) was addressed in the respondent’s letter of 17 December 2014, it had not been revisited in her reconsideration letter of 16 January 2015.  The decision arrived at cumulatively, in those two letters was irrational.

[26]      Counsel for the respondent, on the other hand, submitted that the decisions contained in the respondent’s letters could not be impugned.  The respondent had had regard to all material considerations which she had looked at “in the round”.  She had reached a view she was entitled to reach and had given adequate reasons therefor.  In particular, she had justifiably considered that the passage of time that had occurred between the petitioner leaving Iran and the date of the alleged court citation, taken together with the background information relating to proceedings in Iran, and the immigration judge’s findings regarding the petitioner’s lack of credibility, entitled her to reach the view that the new material relied upon by the petitioner fell to be regarded as wholly unreliable.  That was a wholly rational conclusion. 

[27]      Having considered the submissions made by both sides, and the material placed before me, I have arrived at the conclusion that the attack by the petitioner on the respondent’s decisions as contained in her letters of 17 December 2014 and 16 January 2015 are ill‑founded.  It appears to me that, reading those two letters together, against the background and context of the petitioner’s history, the respondent did, contrary to submissions of senior counsel for the petitioner, ask herself the correct question as desiderated by Buxton LJ in WN and that she addressed the question in the appropriate way – (see for example page 7 of the respondent’s letter of 17 December 2014).  The contentions proffered on behalf of the petitioner in support of the fresh claim were, in my judgement, to a significant extent, correctly identified by the respondent as not being fresh, having been, in substance previously considered by the immigration judge.  The submitted fresh material, focussed on the question of the petitioner’s alleged involvement in court proceedings in Iran and his alleged failure to attend there in the past, which the petitioner sought to support with the citation document and his sister’s statement.  I am satisfied that the respondent had a good and proper basis for regarding this matter as being unreliable both on the basis of (a) the objective consideration she took into account in relation to the delay in these matters being brought forward, and (b) the country advice on court procedures in Iran, and (c) having regard to the substantial finding by the immigration judge as the petitioner’s complete lack of credibility.  It does not appear to me that it can be seriously argued that the respondent’s decision was irrational, or having regard to how she addressed matters in her letters, that it was arrived at without anxious scrutiny, I will accordingly, dismiss the fresh claim petition, by sustaining the respondent’s first and third pleas in law.  

 

Detention petition
[28]      I now turn to deal with the petition in relation to the petitioner’s alleged unlawful detention and, in this connection, refer back to the history of the petitioner’s offending, his failures to comply with court orders and the circumstances, and period, of detention on behalf of the respondent, all as set out above.  Until his release from detention in May 2015 the petitioner had been detained, awaiting deportation, for a period of 34 months.  The petitioner, himself, did not attempt to take any steps during this time to return to Iran voluntarily.  As for his reasons for not doing so, and the effect of his failing to do so, I will return to, in due course. 

[29]      The respondent has been unable to carry out the forced deportation of the petitioner because of his lack of an Iranian passport and the position adopted by the Iranian authorities since the breakdown of diplomatic relations between the United Kingdom and Iran which resulted in the closure of the Iranian Embassy in the United Kingdom in 2011. 

[30]      As to the law on detention, pending deportation, both sides of the bar were in agreement that this is set out in R v Governor of Durham Prison, EXp Hardial Singh [1984] 1 WLR 704 by Woolf J, as he then was, and as that judgement has been applied, and explained, in subsequent cases.  The so-called “Hardial Singh” principles are as follows: 

(a)        that detention pending deportation is limited to such period of time as is reasonably necessary to carry out the process of deportation

(b)        that the Secretary of State is under a duty to act promptly in carrying out the process of deportation

(c)        she should not exercise the power of detention unless the person, subject to a deportation order, can be deported within a reasonable time.

These “rules” have been explained and expanded upon in, among others, the subsequent cases of R (on the application of J) v Secretary of State for the Home Department [2002] EWCA Civ 888 and R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.  The authorities have been particularly concerned with explaining how the question of what constitutes a reasonable time is to be addressed.  In R (on the application of J) Dyson LJ (as he then was) at paragraph 48 gave the following guidance: 

“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 pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971.   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.”

 

[31]      In the present case the focus was, to a very large extent, on the reasonableness, or otherwise, of the continued detention of the petitioner until May of this year in the light of the facts that the petitioner does not have a valid passport and the closure of the Iranian Embassy in 2011.  The position with regard to detained Iranian deportees in the light of the consequences of the closure of the Iranian Embassy in November 2011 was considered by Laing J in R (JM) v Secretary of State for the Home Department [2014] EWHC 151 (Admin).  The judgment in that case was issued on 4 February 2014.  I find it useful and convenient to set out what her Ladyship had to say at paragraphs 70- 71 of her judgment which were to the following effect

“70.     Diplomatic relations between the UK and Iran ceased in November 2011, following the storming and subsequent closure of the British Embassy in Tehran.  The Iranian Embassy in London has also closed.  The practical consequences of this has been that the Defendant has not been able to liaise at all with the Iranian authorities regarding the return of the Claimant to Iran, and the Iranian authorities are not prepared to cooperate with the Defendant in respect of deportations.  By letter of 18^th December 2012, the Defendant stated ‘We continue to be able to remove to Iran where the subject holds a valid Iranian passport of previously issued ETD but the UKBA has not had any contact with the Iranian authorities about returning Iranians to Iran who are in the UK without a passport since 30^th November 2011’.  In these extraordinary circumstances, the Defendant was not in a position to take any steps to affect deportation. 

 

71.       The Defendant then took the view, which he still maintains, that the onus rested upon the claimant, with the help of his family, to apply directly to the Iranian authorities to obtain the necessary documentation to enable him to return to Iran, at Iranian Embassies in Dublin or Paris, or to the Iranian Interest Section in the Omani Embassy in London.  In my judgment, it was reasonable for the defender to ask the claimant to explore these options, and for the Defendant to assume that there was some realistic prospect of success.  After all, this was not a case where his nationality was in dispute.  There was no doubt that he was an Iranian national and he had recently been issued with an Iranian passport.  A Home Office Guidance Note in May 2013 stated that at least 10 persons had left Iran on travel documents issued in Dublin.  However, I am satisfied that the stage has now been reached where it is apparent that it is not going to be possible for the claimant to obtain the necessary documentation by these means.” (Emphasis added.)

 

It should be noted that the claimant was no longer in possession of his passport.  The judge then set out her consideration of the material placed before her, touching on the question of whether the individual on the case with which she was dealing might have been able to achieve voluntary deportation through the agency of the embassy of the Sultanate of Oman or the Iranian embassies in Dublin or Paris.  At paragraph 78 she concluded as follows: 

“On the basis of this evidence, I conclude there is currently no realistic prospect of the Claimant obtaining a passport or ETD from Paris or Dublin or the Omani Embassy.  The Paris Embassy will only assist those living in France, and in any event, he could not travel there, even if he was on bail.  The Dublin Embassy will only assist those who can produce an expired passport, which he cannot.  In any event he could not travel to Dublin without a passport, even if he was on bail.  Ms Bretherton’s suggestion that one of his young daughters (who are British, not Iranian) could travel to Paris or Dublin and obtain identity or travel documentation for him in his absence, and without any proof of his identity, is not realistic in the light of the evidence of Choices, Dr Kakhki, and of his brother and sister.  It also seems unlikely to succeed, given the stringent requirements applied by the Iranian Embassy in London, prior to closure, and the assertion in October 2008 that they had no record of the claimant on their system.  The UK government could not persuade the Iranian authorities to acknowledge the claimant as an Iranian national without identity documents, it seems unlikely that his children would be able to do so.”

 

At paragraphs 80 - 82 of her judgment, her Ladyship noted

“80.     There are improvements in diplomatic relations between the UK and Iran which are likely to facilitate returns in future.  It has been widely reported that, under the newly-elected moderate President of Iran, moves are afoot to restore diplomatic relations between the UK and Iran.  Mr Oakdem confirmed in his statement dated 11^th December 2013 that the UK and Iran have both appointed non‑resident Chargè d’Affaires, who will visit each other’s countries on a regular basis.  Reciprocal visits have recently taken place.  There have been discussions on a wide range of issues, including the return of undocumented Iranian nationals who have no right to remain in the UK.  Ms Bretherton informed me on instructions that there were ‘fast moving’ developments in the restoration of the relationship between the two countries, but the detail was too sensitive and confidential to be disclosed, which I accept.

 

81.       Furthermore, in the Defendant’s email of 22 January 2014, it states,

‘The FCO has requested the Sultanate of Oman’s assistance within engaging the Iranian authorities on the voluntary return of undocumented Iranian nationals and has presented six test cases for their consideration.  To date we have not received an official response from Iran and we are aware that Iran only considers two of the six to be Iranian nationals.  The question of an appropriate system for returning undocumented Iranian nationals without the right to remain in the UK is currently under discussion between the UK and Iran’s non-resident Chargè d’Affaires.’

 

82.       In light of this evidence, I consider that there is a realistic prospect of removal of Iranians to Iran within a reasonable time i.e. months.  As Ms Bretherton has said, developments are fast moving.  Of course, the current negotiations with Iran may be not be successful, particularly in respect of forced removals, which was previously a sticking point with the Iranian authorities.  This should become apparent, one way or the other, in the near future.”

 

[32]      The individual in the JM case had been detained for 15 months commencing on 19 October 2012.  He had, however, been subject to a previous period of retention and had been detained for 30 months for that purpose and this was taken into account by the judge.  At paragraph 109 of her judgment her Ladyship concluded

“In summary my conclusions are that the Defendant has acted with reasonable diligence and expedition to effect removal, in the very difficult circumstances that pertain in relation to Iran.  Now the only realistic prospect of removal to Iran is the establishment of new arrangements between the UK and Iran for the return of undocumented Iranian nationals.  On the evidence before me, such arrangements are currently being negotiated between the two countries.  On that basis I conclude that deportation is once again a realistic prospect.  If those negotiations do not come to fruition in the near future (by which I mean months, not years) then the claimant should make a further application for bail, and if necessary, for judicial review.  Bearing in mind the length of time he has already been detained, it would unreasonable for detention to continue any longer if agreement is not reached with Iran soon.”

 

It must be noted that the court in the last mentioned case, reached the conclusion that it would not have been practical for the claimant, in that case, to achieve voluntary deportation by the means suggested by the respondent, on the basis of her findings as to the claimant’s particular circumstances, and the evidence she had before her of the possibilities of obtaining the necessary papers by the routes, then suggested on behalf of the respondent.  She did not, however, appear to dispute the respondent’s belief that those routes existed and that the continued detention of the claimant was reasonable because of, inter alia, that belief - see paragraph 111 of the judgment.  I refer again, in this connection, to the sworn affidavits of official, Mark Griffiths which referred to the establishment of limited consular services to Iranian nationals from the Iranian consulate or to London as from 20 February 2014, which, of course, postdates the judgment in JM.

[33]      There was nothing placed before me, on behalf of the petitioner, to contradict or displace what is stated in the affidavits of Mr Griffiths.  It was, however, contended on behalf of the petitioner that his failure to seek voluntary deportation was justified, in any event, because he had a pending asylum claim, which was a reference to the “fresh claim” which I have considered in the first part of this opinion.  The failure of the petitioner to seek to effect voluntary deportation formed a substantial part of the respondent’s case that the duration of the detention, in this case, was reasonable.  Such a factor was considered by Lord Dyson, who gave the leading majority judgment of the Supreme Court in Lumba at paragraphs 127-128.  In the present case I have concluded that the respondent was justified in holding that the fresh claim was without merit.  I also have had regard to how late in the day it appeared.  Those matters, taken together with what is said in the sworn affidavits of the respondent’s official, lead me to the conclusion that the petitioner’s refusal to seek voluntary deportation is a relevant factor, though not a “trump card” justifying, in itself, indefinite detention.  The other main factors which have to be considered in the present case are firstly, the difficulties which the respondent has had in effecting forced removals to Iran since November 2011 and the on‑going negotiations the governments have been pursing in that connection and generally with regard to relations with Iran during the ensuing period, and secondly, the risk of the petitioner reoffending, if released, and the resultant risk of his absconding, against the background of the dreadful record of the petitioner’s previous offending.   

[34]      In the circumstances of the present case it seems to me that I also have to have, at least, regard to the fact that in July 2014 and February 2015 Lord Kinclaven and Lady Wise apparently reached the conclusion that albeit in respect of motions for interim liberation, in the present petition proceedings, that release was not justified as at those respective times.  It does not appear that either of those judge’s produced written reasons for their decisions, in that respect, nor does it appear that leave to reclaim against those decisions was sought.  In the document 7/15 of the detention petition process, dated 1 May 2015 and headed “detention review” which appears to have triggered the release of the petitioner from detention, it is stated at paragraph 8

“I have assessed Mr Adamiat as posing a high risk of absconding.  In 2004 Mr Adamiat was listed as an absconder.  He has a very poor immigration history and has committed offences in the past.  He has absconded in the past when he was released subject to restrictions imposed and is highly likely to abscond.”

 

At paragraph 10 of the same document it is stated

“The Offender Managers Assessment (NOMSI) confirms Mr Adamiat poses a high risk of harm to the public, were he to be released.  He has a vast history of theft and burglary (aggravated/breaking and entering).  He has shown himself to be a prolific offender and it is believed the frequency of his offending gives a clear indication there is a significant risk he would reoffend.  If released Mr Adamiat will have no recourse to public funds;  he may resort to illegal activities to maintain himself.”

 

On the final page of that document, as noted above, it is stated: 

“Mr Adamiat is considered to pose a risk of harm and of absconding.  However we appear to have hit a barrier on documentation and although the relationship with the Iranian authorities is improving, it is not clear that we will be able to resolve this in the short term.  So we must consider release.  I note that we need to consider the healthcare angle to this but should do so quickly with a view to coming to a conclusion within the week. ...” (Emphasis added).

 

Counsel for the respondent informed me that he understood that the emphasised words were not a reference to any difficulties which the petitioner himself would face in obtaining relevant documentation, for his voluntary return to Iran, but is a reference to difficulties that the UK Government would continue to experience with regard to documentation being obtained from the Iranian authorities for the purpose of forced deportations to Iran.

[35]      Senior counsel for the petitioner sought to submit that the petitioner was not really a recidivist, his offending being associated with his drug addiction.  Senior counsel seemed to be suggesting that that should reduce any concerns regarding reoffending and absconding.  I disagree.  I considered the petitioner to have a deplorable record of repeated offending and that the nature, and extent, of his previous and persistent offending, his immigration history, his failure to comply with restrictions imposed previously when released justified the view, taken on behalf of the respondent, that up until the petitioner’s release, he posed a high risk of re‑offending on release.  Senior counsel for the petitioner also relied on the fact that the petitioner was treated for hepatitis C as from 20 January 2015.  I note from document 7/15 of process, paragraph 12 that the treatment was to endure for 24 weeks from 20 January 2015.  I note also from 7/1 of process, paragraph 12, that it is stated that “treatment for hepatitis C “is available in Iran according to the COI website”.  In those circumstances I do not consider that this factor materially reduced the risk of absconding. 

[36]      I should record that counsel for the respondent informed the court that the petitioner had failed, on two occasions, since his release, to report to the authorities, in accordance with the conditions imposed on his release.  In relation to the first of these, on 16 June 2015, senior counsel for the petitioner proffered an explanation which, as I understood it, was that on the day in question the petitioner had an appointment with persons who were assisting him with his homelessness.  He was on his way to report, as required, when he received a telephone call from those assisting him regarding housing, during which he was told that if he failed to attend a meeting that day with them then they could assist him not further.  He, accordingly, went to that meeting and those he met contacted the respondent’s representatives to explain the position.  The respondent’s representatives said that they would be sending a letter to instruct him to be sure to report the following week.  As to the second occasion on which it was said he had not reported, as required, that was very shortly before the hearing before me and those acting for him had not been in a position to receive any instructions or information, relating thereto.  Neither of these matters was explored, or tested sufficiently before me to allow me to place any reliance upon them in reaching my decision.

[37]      It is undoubtedly the case that the petitioner has been detained for a very significant period of time, namely 34 months.  The authorities placed before me, show even longer periods, in particular circumstances, being held judicially to be reasonable and other significantly shorter periods, being held to be unreasonable.  Each case is obviously fact sensitive and a conclusion on whether the detention period in the circumstances is reasonable, or not, has to be arrived at applying the relevant factors to the particular facts and circumstances.  While I accept that the period of detention of the claimant in the JM case was significantly shorter than that of the petitioner’s detention in the present case and that the decision in that case necessarily turned on the particular facts of the particular claimant, nevertheless, I have no reason to quarrel with the court’s approach in that case, as regards the reasonableness of the respondent’s position in relation to seeking the cooperation of the Iranian authorities.  Laing J was at paragraph 82 of her judgment satisfied that at the date of the judgment there was “a reasonable prospect of removal of Iranians to Iran within a reasonable period i.e. months”.  The position with regard to negotiations with the Iranian authorities was clearly fluid if not, at times, fast flowing.  The opening of the Iranian consulate in February 2004 appears to have significantly altered the position with regard to the possibility of voluntary returns.  The petitioner was released, in the event, not years but months after the decision in JM.  Once, it seems, that it was apparent that the hoped for results of the negotiations regarding forced removals had not advanced as much as had been hoped for, the petitioner was released (though I note that as at the date of this judgment it appears that diplomatic relations have very much improved between Iran and the United Kingdom just recently with the reopening of the Iranian Embassy in London and the United Kingdom Embassy in Tehran).

[38]      I am entitled, I believe, to assume that when this court in July 2014 and February 2015 reached the view that on a prima facie basis at least, continued detention at that time was not unreasonable, they had regard not only to the difficulties regarding the United Kingdom’s relationship with Iran, but also the risk of the petitioner reoffending and absconding.  In Lumba Lord Dyson at paragraphs 107-110 dealt with the relevance of the factor of risk of offending.  At paragraph 109 his Lordship said

“But the risk of reoffending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding.  As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re‑offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence.  Either way, his re‑offending will impede his deportation.” 

 

110.     The risk of reoffending is, therefore, a relevant factor.”

 

In this case, I repeat that, in my view, the respondent was well entitled to reach the view and to maintain the view throughout the petitioner’s period of detention, that his deplorable record of reoffending, his immigration history and his lack of cooperation with the authorities in the past, posed a serious risk of his reoffending and absconding, so that at least until his release, the period of detention, in all the circumstances, cannot be said to have been unreasonable. 

[39]      In the event, therefore, I will sustain the respondent’s pleas in law 2, 4 and 6 and dismiss this petition.