One dreary day in November 2004, UK border officials opened the back of a lorry and discovered a 16-year-old Sudanese boy, Jumaa Kater Saleh.
He had travelled illegally for more than 3,000 miles across Europe, in an attempt to escape his war-ravaged homeland and seek asylum in Britain.
As innocuous and vulnerable as he may have seemed, this boy would go on to cause headache after headache for the authorities and for the taxpayer, not to mention trauma to the victims of his crimes.
In 2008, he was convicted of serious sex offences against children.
Last week, however, with the help of the country’s top human rights lawyers and relying on legal aid, he successfully sued the Government for “unreasonable administrative delay”, which had led to him being detained unnecessarily for eight months.
The level of the damages that he will be awarded is currently being decided. But the Government has already been forced to pay substantial legal costs.
Sudan is a deeply troubled state, and many asylum seekers are genuine. From the very beginning, however, there was something suspicious about Saleh.
When his story was first scrutinised by the Home Office it was found to be “vague, unsubstantiated and lacking in detail”.
He said that his father was an arable farmer; but men from his tribe usually farm cattle. He claimed to be from an interior part of Sudan; but his tribe is normally found in the border region.
And his backstory, which involved his family home being burned down, as well as his account of his journey to Britain and how it had been financed, was full of holes.
So Saleh’s asylum application was rejected. He was, however, allowed discretionary leave to remain until his 18th birthday; under-18s cannot be deported alone.
Turning 18, therefore, should have been the end of the story. But the trouble was only beginning. And the manner in which it unfolded reveals the dysfunctional nature of many aspects of the British immigration system.
In May 2007, 19 year-old Saleh — whose asylum case was now under review as part of the UK Border Agency “legacy” scheme, set up to deal with a massive backlog of cases — was arrested.
As part of a five-man grooming gang, he had lured three local schoolgirls to a house in Dartford, Kent, for sex, including unprotected intercourse. The court heard that these girls, aged 13 and 14, were “clearly disturbed and vulnerable, far from mature for their years, and had been targeted by the group”.
One of the gang’s victims, a 13 year-old girl, suffered emotional difficulties and had been undergoing counselling. She experienced dramatic mood swings, found it hard to separate fact from fantasy, and was “a child out of control”.
The leader of the gang, Adil Aboulkadir, had been having sex with another 13 year-old girl, while under the impression that she was 16. When she told him her true age, he told her that he did not want a relationship with her as she was “too little”. Instead, he introduced her to Saleh, who was 19 at the time. He had a sexual relationship with her for two months.
Judge Martin Joy, as he sentenced them, paid particular attention to the way that the gang, all of whom had come from Sudan claiming asylum, did everything they could to delay and obfuscate court proceedings.
There had been eight pre-trial management hearings and numerous conferences. Each defendant had claimed the need for a separate interpreter, creating a bill of £25,000; they had also demanded a second barrister each. In short, they had “exploited the most civilised aspects of this country”, a summary of his remarks recorded.
Saleh was sentenced to four years at Feltham Young Offenders’ Institution, and released in May 2009, after his sentence was discounted automatically to two years. Not that he had been idle behind bars; on legal aid he and his four fellow sex criminals launched appeals against their convictions, which were entirely dismissed by a panel which included Lord Justice Thomas, now the Lord Chief Justice.
According to the UK Borders Act 2007, foreign national offenders who have been sentenced to 12 months or more in prison must be removed from Britain after their release. Thus Saleh’s offence had made him due for automatic deportation.
But he was not content to go peacefully. His lawyers launched a series of appeals, arguing that he deserved protection under the UN Refugee Convention and humanitarian protection legislation. At an immigration tribunal in November 2010 both of these claims were abandoned.
At this point, however, the goalposts moved. Saleh’s lawyers were given permission to amend the appeal, and claim relief under Article 3 of the European Convention on Human Rights, which bans torture or “inhuman or degrading treatment or punishment”.
He was at risk of those, lawyers said, if he were sent back to his native land, and that would breach human rights law.
Once again, therefore, it was the British Government versus the European Convention on Human Rights, as enshrined in domestic law by Labour’s Human Rights Act in 1997. The legal battle took two years. To protect the public and to prevent him from absconding, Saleh was detained at Harmondsworth Immigration Removal Centre at Heathrow, at a cost to the taxpayer of more than £40,000 per year.
This multi-million pound, purpose-built facility features 24-hour, on-site medical care; a “world faith centre” with several prayer rooms; a well-stocked library; a gym with a selection of fitness equipment; a sports hall with provision for indoor games; an adult education centre, staffed by permanent teaching staff; a social room on every floor, with televisions and board games; paid work opportunities; and a “detainee friends” system to support new arrivals.
Being deprived of one’s freedom is a serious matter. Nevertheless, to a man accustomed to the hardships of Sudan, where half the population do not have enough to eat, healthcare is negligible and conflict continues to destabilise many areas, Harmondsworth must have seemed an extremely gilded cage.
While he was detained, Saleh appointed Duncan Lewis, a leading firm of immigration solicitors, to fight both against his deportation and to have him released. At this point, his fortunes seemed to dramatically improve.
This London-based firm earns more money from the Government in legal aid than any other solicitors. In 2011/12, it earned almost £15 million in civil legal aid payments, which is almost double the £8 million earned by Blavo & Co, its closest competitor.
In May 2011, the immigration tribunal ruled that it would be a breach of European human rights law to deport Saleh to Sudan, and he was released.
The decision, however, appears to have been based on an alarmingly superficial analysis, which raises questions about the quality of decision-making on immigration cases in Britain.
According to court documents, the entire case turned on whether or not he was genuinely a member of the Zaghawa tribe from Darfur.
The Zaghawa are a semi-nomadic people who herd cattle, sheep and camels, and grow wild grains. Despite the fact that they converted to Islam, from animism, in the 1940s, Arab militias view them as predominantly African, and — together with Sudanese government forces — persecuted them during the Darfur conflict in 2003. Rebel forces recruited child soldiers from the tribe.
More than 100,000 Zaghawas were displaced, fleeing to UN refugee camps on the border or to neighbouring countries.
Saleh’s lawyers argued that if he was demonstrably a Zaghawa, his life would be at risk in Sudan. Deporting him would thus be an infringement of human rights.
An expert witness on Darfur and Sudan, Peter Verney, gave evidence to the court that Saleh was indeed a Zaghawa. This proved to be the deciding moment of the case.
“The [tribunal] was clearly impressed with Mr Verney’s evidence, and treated his evidence as conclusive without addressing in any detail the areas of doubt put forward,” commented Philip Mott QC, the deputy High Court Judge who earlier this year rejected Saleh’s first attempt to sue the Government in January.
“Once [Mr Verney’s] report had been produced, the Claimant’s prospects brightened considerably.”
Yet when I asked Mr Verney about his evidence, he said that he had in fact found Saleh “slippery”, and found it “perplexing” that his evidence had become the “deciding factor”.
“[Saleh] was quite affable,” he said. “Nothing immediately struck me as sinister or unpleasant. But there was a childishness, a slipperiness, a vagueness to him that made me calibrate my choice of words very carefully.
“I didn’t want to stick my neck out for him. I wanted to keep my powder dry for the really strong cases.” Moreover, according to Mr Verney, the fact that Saleh was indeed a member of the Zaghawa tribe would not automatically have placed him at risk.
“While it is right to acknowledge that certain groups are targeted,” he said, “it is always the case that there are quislings, people working with the other side, collaborators, and informers posing as asylum seekers. [His Zaghawa identity] alone shouldn’t have been sufficient as the basis of asylum.”
Nevertheless, Saleh was now a free man. But his legal action did not end there. Instead he simply changed his focus to sue the Government for detaining him for too long at Harmondsworth. This was funded by legal aid.
In January, Saleh’s claim was thrown out by Mr Mott QC, who was sitting as a deputy High Court judge. “More expedition would have been ideal,” he ruled, “but the delay was not unlawful.”
Saleh and his lawyers, however, were undeterred and launched another appeal. This was heard on October 7 by the Lord Dyson, the Master of the Rolls, together with Lord Justice McFarlane Lady Justice Sharp, at the Court of Appeal.
In the lead ruling, Lord Justice McFarlane reversed the judgment of Philip Mott QC, a Deputy High Court Judge, saying that he “fell into significant error” and provided “a totally inadequate analysis”.
“There is no requirement upon the Secretary of State to account for every single day or every single week,” he said, “[but] a proportion of the total period of detention was unreasonable and therefore unlawful.” Saleh — who is now living freely in Leicester — was awarded compensation for eight months of detention. The sum he will receive will be decided in the coming weeks. When he receives the payout, by the standards of his home country he will almost certainly be a rich man; UN figures suggest average gross national income in Sudan was £584 per head in 2011.
“Not only is the human rights merry-go-round undermining our attempt to deport serious criminals,” said Dominic Raab, the Conservative MP for Esher and Walton, “it now allows them to sue the government for trying. It’s a gravy-train for human rights lawyers, but a nightmare for the taxpayer and the rule of law.”
Part of the problem is that British law states that a detainee pending deportation must only be held for a “reasonable” length of time, without stipulating how long that might be.
Humanitarian campaign groups strongly condemn the lack of time-limit on detention. They argue that it contravenes the UN Refugee Agency guidelines that “maximum limits on detention should be established in law”, and believe that detaining someone who is not being punished for any crime, without offering any light at the end of the tunnel, is problematic.
The Home Office, however, would take the view that such flexibility is necessary for complex cases to be dealt with thoroughly and with due diligence.
Other countries with an open-ended policy of detention include notably liberal countries such as Denmark, Sweden, Finland, and the Netherlands.
But an unforeseen consequence of this lack of clear timescale is that it creates an open goal for detainees seeking taxpayers’ money.
“If you have an open-ended detention policy, it encourages this sort of action because the Home Office has to justify what is ‘reasonable’”, said Toufique Hossain, the Duncan Lewis solicitor who represented Saleh.
“We were initially working on legal aid rates, which is something we have to stick to. But now that the Government has lost the case, it will have to pay our costs. This will be charged at private rates, which can be three or four times as high.
“It is clear that the Home Secretary has to act lawfully when detaining individuals,” he added. “She [Theresa May] either has to deport within a reasonable period of time or if she cannot deport, she must release. It really is as simple as that.” But it would seem that the Home Office finds it anything but simple.
When he ruled to award damages to Saleh, Lord Justice McFarlane, the Master of the Rolls, was scathing about the lack of adequate representation from the Home Secretary.
“It was to be expected that the Secretary of State would have filed a witness statement explaining in sufficient detail what had occurred,” he said.
“No such statement was filed… The Secretary of State has wholly failed to file any evidence purporting to provide an account for [the periods in question].” The Home Office declined to comment on the reason for this failing. It seems likely, however, that this bungle — as well as the initial error of detaining Saleh for so long — is a symptom of an overloaded system.
The scale of immigration detention has doubled in the last 10 years.
According to figures obtained by the Home Affairs Select Committee, in 2012 a total of 28,909 people entered detention, the highest since the Coalition Government came to power.
This, in addition to the pressures created by the fact that no precise time-scale has been applied to any of these detainees, can only place a massive administrative burden on the Home Office.
Large-scale detention is also hugely expensive. UK Border Agency (UKBA) accounts reveal that £186 million was spent on detention and removal in 2011/12. The previous year, that figure was £206 million.
This is a problem that is likely to only get worse. The case of Jumaa Kater Saleh is far from unique, and may be part of a trend.
In October, Mouaz Al Sayed, a 30-year-old convicted identity fraudster who had made two applications for asylum under a bogus name — and who is also from Sudan — launched a compensation claim for £50,000 for being “falsely imprisoned” as officials tried to deport him. His case was settled out of court, and the sum paid has not been disclosed.
In February, a 30-year-old Somali man, Abdirahman Ajab, who had a wealth of previous convictions including for armed robbery, also sued the Government for £50,000, claiming that being held at an immigration centre for eight months caused him mental distress.
“The Government have been doing me bad for years,” he said. “It’s given me mental problems. It’s given me nightmares. They owe me man.” Both of these men were represented by different firms of solicitors.
The list goes on. The UKBA, which has since been split up by Mrs May in a bid to improve the long-standing malaise in the immigration system, estimated that in 2011/12, unlawful detention cost the taxpayer £5.7 million; in 2009/10 it cost £12 million.
“The public are outraged with human rights laws being used to stop dangerous foreign criminals from being deported, and disgusted when those laws reward offenders with compensation,” said Priti Patel, the Conservative MP for Witham, who has tabled questions about the issue in the House of Commons.
“This judgment sends out all the wrong signals to foreign criminals living in Britain. If we cannot deport a dangerous paedophile, then who can we remove from Britain?”
There can be little doubt that the system for detaining and removing dangerous illegal immigrants from Britain needs to be improved. Human rights lawyers are finding themselves in a happy hunting ground, and the Home Office is all too often overloaded and under fire.
Unless this sorry state of affairs is rectified, the story of Saleh — and countless people like him — will not end any time soon.
Courtesy of Jake Wallis Simons, The Telegraph