In the case of R (on the application of Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) (25 August 2011) John Howell QC, sitting as a deputy judge of the High Court, held that the entire period of detention of an Algerian man was unlawful, a period of five years. The judge also held that evidence presented by three named Home Office officials was false and misleading, concluding as follows:

What this sorry saga appears to reveal is a disturbing level of incompetent ignorance in what is apparently the team in the Home Office and the “Family Tracing Unit” in Algiers who are supposed to specialise in investigations to support applications to the Algerian authorities for ETDs.

The decision to detain was found to have been at least influenced by the secret policy of detaining all foreign national prisoners come what may. Indeed, this looks like a classic example of the harm that policy caused. Five years loss of liberty for committing no crime is simply awful (to be clear, he had committed a string of earlier offences but had served his time for those offences by the time immigration detention began). It really does amount to throwing away the key.

The most significant finding by the judge in legal terms is that a failure to co-operate with removal does not of itself justify immigration detention. The judge concludes that there was never any realistic prospect of removal within a reasonable time. This is surely borne out by the astounding length of the ensuing detention. The judge also holds that the Home Office had not acted with reasonable diligence and expedition in this case

A number of issues around removals specifically to Algeria also emerge in the judgment, including that the Algerian ‘population database’ that the Home Office claimed to be searching basically does not exist.

The judgment closes with these comments:

235. Many people may well be very concerned that an individual, who is the subject of a deportation order that was made because his removal would be conducive to the public good, has been able to frustrate his deportation by deliberately not co-operating with the Secretary of State for more than five years. They may well be outraged that such an individual may be entitled to any substantial damages for being detained because he was evidently determined to frustrate any efforts to remove him and the Secretary of State could not arrange his removal without his assistance. Nonetheless, however unattractive in the circumstances this Claimant’s claim for damages for the loss of his liberty may be, an individual’s failure to co-operate with the Secretary of State in facilitating his removal is not a justification in itself for any immigration detention. Such an individual’s failure to co-operate without reasonable excuse renders him liable on conviction on indictment to up to 12 months imprisonment. Immigration detention may only be justified if there is a realistic prospect of removing an individual within a reasonable period taking into account his failure to co-operate. In this case there was no such prospect. The Claimant is according entitled at least prima facie to damages for false imprisonment, which are more than nominal, to be assessed.

236. I have not considered, however, whether any damages for loss of liberty to which the Claimant may otherwise be entitled fall to be reduced or extinguished by his failure to mitigate his own loss by deliberately not co-operating with the Secretary of State when had he done so he could have been removed and not detained. Nor have I considered whether, but for his detention, he would not have been at liberty in any event, but rather in prison (and, if so, for what periods), given the likelihood of his re-offending. Nor have I considered what damages might be awarded in this case.