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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sheikh, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 147 (Admin) (31 January 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/147.html Cite as: [2019] EWHC 147 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the Application of ABDUL HANNAN SHEIKH |
Claimant |
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- and – |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing date: 6 November 2018
____________________
Crown Copyright ©
Mr Andrew Henshaw QC:
(C) ISSUE 1: SERVICE OF DECEMBER 2015 REFUSAL
(1) Service of Refusal Letter: facts 7
(2) Service of refusal decision: law 9
(3) Discussion 12
(D) ISSUE 2: UNFAIRNESS/IRRATIONALITY
(F) ISSUE 4: LEGALITY OF CONTINUED DETENTION
(1) The law 23
(2) Application to the present case 34
(G) ISSUE 5: SENIOR COURTS ACT SECTION 31(2A)
(A) INTRODUCTION
i) a decision by the Defendant on 7 February 2017 that the Claimant is liable to administrative removal as an overstayer, and
ii) his detention pending removal from 28 February 2017 to 9 August 2017 when he was released on immigration bail.
i) whether the Defendant's decision of 4 December 2015 rejecting the Claimant's application for further leave to remain, made on 27 August 2013, was validly served on the Claimant on or about 10 January 2016 (as the Defendant says) or only on or shortly after 16 February 2017 (as Claimant says);
ii) whether the Defendant has acted unfairly or irrationally, including by not issuing a "60-day letter" giving the Claimant the opportunity to find a new sponsor before refusing his further leave application;
iii) whether the Defendant had the power to detain the Claimant on 28 February 2017;
iv) whether the Claimant's detention was unlawful as being contrary to public law as expressed, in particular, by the Hardial Singh principles; and
v) if the Defendant did act unlawfully in any respect, whether no relief should be granted on the basis that it is highly likely that the outcome for the Claimant would not have been substantially different (section 31(2A) of the Senior Courts Act 1981).
(B) BACKGROUND FACTS
"On 08/08/2014 our Client states that he updated his correspondence/home address (last known address) through online using Home Office change of address guidance. On 15/08/2015 [sic] he called Home Office and took confirmation from them regarding his change of address. He confirms that till date he has not received any correspondence from Home Office."
i) that the Claimant relied on a fraudulent TOEIC English language test certificate in support of his application, which therefore fell to be refused under Paragraph 322(1A) of the Immigration Rules;
ii) that the Claimant's educational institution, Barking and Dagenham College, as at the date of the decision was not on the Tier 4 register of licenced sponsors, so that the Claimant was not entitled to any points under Appendix A to the Immigration Rules; and
iii) that the Claimant was not entitled to any points for maintenance under Appendix C to the Immigration Rules.
"Unfortunately, we cannot issue a curtailment notice to your migrant, as the leave the migrant submitted an application for on 27 August 2013 to study at Barking and Dagenham College has never been granted. Therefore, no[] curtailment letter will be issued as there is no leave to be curtailed."
"You are a person with no leave to enter or remain in the United Kingdom (UK). You have not given any reasons as to why you should be granted leave to remain or why you should not require leave to remain. Therefore you are liable for removal.
…
A decision has been made to curtail/revoke your leave so that it expires with immediate effect. The following reasons are given:
…
You entered the United Kingdom on 29/04/2007 with a multi entry student visa valid until 01/04/2009. You applied and was granted a further five student visas with the last expiry of 28/02/2014. On 28/06/2013 your leave was curtailed and given a new expiry date of 27/08/2013. You have not made any successful further applications to the Home office to regularise your stay in the United Kingdom. On 18/07/2016 you were encountered working illegally at Love 2 Laundry … You have therefore breached Section 10(1)(a) of the Immigration and Asylum Act 1999. (As amended by the Immigration Act 2014.)"
The notice gave a removal window of 3 months from 21 July 2016.
"The documents which have been given by Mr Sheikh show that his previous application is still pending. Home Office did not make any decision regarding his previous matter. He states that he has been in touch with Home Office regularly and made up to date his correspondence and till date he did not receive any correspondence from you.
We refer to your letter of 18 July 2016. On that day he was encountered by Home Office alleging that he was working illegally … Our client denies all alleged allegations made by HO as he states that he was there to visit his friend Mr … who is the owner of that shop. …"
(C) ISSUE 1: SERVICE OF DECEMBER 2015 REFUSAL
"3C Continuation of leave pending variation decision
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(c) an appeal under that section against that decision [, brought while the appellant is in the United Kingdom,] is pending (within the meaning of section 104 of that Act) … "
(1) Service of Refusal Letter: facts
"On 8th August 2014 I updated correspondence/home address, using online Home Office change of address guidance. On 8 August 2014 I moved out from my old address, 38 West Road, London E15 3PY and on the same day I moved in my address, Flat … Siege House, Sydney Street, London E1 2HP. On 15th August 2014 in about 4pm I called Home Office (Mr Brian) and took confirmation from them regarding change of address."
i) the letter sent the following year, on 16 November 2015, to the Defendant's agents by the Claimant's then legal representatives UKLIE included the statement quoted in § 6 above; and
ii) (as is common ground) when interviewed on 7 February 2017, the Claimant indicated that he believed that he had an outstanding Tier 4 application – in other words, that he believed that his August 2013 application for further leave to remain remained undetermined.
"On 16 February 2017 HO refused the above PAP [pre-action protocol letter]. First time I came to know that from the response to PAP that my last application was refused with Right of Appeal. That refusal letter was dated 04 December 2015 and was never served me. It was only served to my current solicitor, Hafiz & Haque Solicitors with response to PAP."
i) the Refusal Letter was posted on 3 December 2015 to Farrah & Co Solicitors, who had been recorded as the Claimant's solicitors in February 2013;
ii) a new legal representative (UK Legal & Immigration Experts Ltd) was added to the system on 18 November 2015;
iii) on 8 January 2016 the Refusal Letter was sent by recorded delivery (quoting the reference) to the Claimant at 38 West Road;
iv) that address had first been submitted to the Defendant with the Claimant's application for leave to remain in May 2010;
v) if the Claimant had contacted the Home Office in August 2014 to tell it that 38 West Road was no longer his residential address, then the 'Maintain Address' and 'Notes' screens in CID would have been updated, but that there was in fact no record of a change of address on CID during or prior to 2014; and
vi) changes of address can be notified by email, fax or letter but not over the phone.
(2) Service of refusal decision: law
"The short answer to these submissions is that section 4 of the 1971 Act explicitly provides that the power to give leave to remain or to vary any leave "shall be exercised by notice in writing given to the person affected". Accordingly, the fact that internally the Secretary of State may have decided to refuse Mr Ali's application to vary his leave on 7 July is legally irrelevant. What is legally relevant is the date and time of the service of notice in writing to the person affected. Until then there is legally no decision."
"The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under s3(3)(a) (whether as regards duration or conditions)… shall be exercised by the Secretary of State; and…. those powers shall be exercised by notice in writing given to the person affected…."
"Grant, refusal or variation of leave by notice in writing
8ZA.—(1) A notice in writing—
(a) giving leave to enter or remain in the United Kingdom;
(b) refusing leave to enter or remain in the United Kingdom;
(c) refusing to vary a person's leave to enter or remain in the United Kingdom; or
(d) varying a person's leave to enter or remain in the United Kingdom,
may be given to the person affected as required by section 4(1) of the Act as follows.
(2) The notice may be—
(a) given by hand;
(b) sent by fax;
(c) sent by postal service to a postal address provided for correspondence by the person or the person's representative;
(d) sent electronically to an e-mail address provided for correspondence by the person or the person's representative;
(e) sent by document exchange to a document exchange number or address; or
(f) sent by courier.
(3) Where no postal or e-mail address for correspondence has been provided, the notice may be sent—
(a) by postal service to—
(i) the last-known or usual place of abode, place of study or place of business of the person; or
(ii) the last-known or usual place of business of the person's representative; or
(b) electronically to—
(i) the last-known e-mail address for the person (including at the person's last-known place of study or place of business); or
(ii) the last-known e-mail address of the person's representative.
(4) Where attempts to give notice in accordance with paragraphs (2) and (3) are not possible or have failed, when the decision-maker records the reasons for this and places the notice on file the notice shall be deemed to have been given.
(5) Where a notice is deemed to have been given in accordance with paragraph (4) and then subsequently the person is located, the person shall as soon as is practicable be given a copy of the notice and details of when and how it was given.
…
Presumptions about receipt of notice
8ZB.—(1) Where a notice is sent in accordance with article 8ZA, it shall be deemed to have been given to the person affected, unless the contrary is proved—
(a) where the notice is sent by postal service—
(i) on the second day after it was sent by postal service in which delivery or receipt is recorded if sent to a place within the United Kingdom;
…"
"In my view, the proper approach to disputed evidence is that:-
i) The basic rule is that where there is a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants' evidence must be assumed to be correct;
ii) An exception to this rule arises where the documents show that the defendant's evidence cannot be correct; and that
iii) The proper course for a claimant who wishes to challenge the correctness of an important aspect of the defendant's evidence relating to a factual matter on which the judge will have to make a critical factual finding is to apply to cross-examine the maker of the witness statement on which the defendant relies."
(3) Discussion
i) The Defendant's pre-action protocol response and Summary Grounds stated that the refusal decision was made on 3 December 2015, whereas the Detailed Grounds and the Refusal Letter itself give the date of 4 December 2015. I see no reason to believe that that was anything other than an error in case preparation as opposed to an inconsistency of any significance.
ii) The Claimant makes the point that the Refusal Letter which the Defendant has produced is addressed to the Claimant at 38 West Road but dated 4 December 2015. There is no evidence of a re-dated letter of 8 January 2016. The Claimant says it is "inexplicable why a decision which was returned on 8th January 2016 as undelivered did not lead the defendant to changing the date on the letter bearing in mind it was being sent out on 8th January 2016. Moreover, it is also not explained or evidence[d] whether a covering letter dated 8th January 2016 was sent with the decision letter when it was 'apparently' re-sent." I do not accept this. The Defendant's records indicate that the Refusal Letter was re-sent on 8 January 2016, and the tracking number is provided. It is unsurprising in my view that the case handler may have changed the address field but not re-dated the letter.
iii) The pre-action response and Summary Grounds stated that the re-sent Refusal Letter went to 8 West Road, whereas the Detailed Grounds and the letter itself refer to 38 West Road. Since both the Defendant's records and the letter itself give the latter address, I do not consider this point to have any significance.
iv) The Claimant says there was, on the Defendant's case, inordinate delay in making the refusal decision, with no explanation for the apparent lack of action or contact between August 2013 and December 2015. I agree this was a long delay. Regrettably, long delays are not uncommon in some of the Defendant's decision-making processes. It was not contended that the delay rendered the decision unlawful, and I do not consider that it undermines the veracity of the Defendant's account of events.
i) he was (by reason of section 3C of the 1971 Act) not liable for removal on 7 February 2017 but was so liable from 16 February 2017; and
ii) whether there was a power to detain the Claimant on 28 February 2017 depends on the Claimant's contention, which I consider in section (E) below, about the effect of the right which the Claimant may have had to appeal from the refusal or to make a further application under Immigration Rule 39E.
(D) ISSUE 2: UNFAIRNESS/IRRATIONALITY
"[2] Where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.
[3] It would be unfair to refuse an application without opportunity being given to vary it ..."
…
"[25] None of this applies where the applicant has not been a bona fide student at the college where he is seeking to extend his stay, or where he has participated in the practices that may have led the college to lose its sponsorship status, or where he has had actual knowledge of the cessation that the termination of the college's status as a sponsor either before the application for an extension of stay was made or shortly thereafter and when he had adequate opportunity to amend the application by seeking to substitute an approved college for an unapproved one." (my emphasis)
(E) ISSUE 3: POWER TO DETAIN
i) following service of the refusal decision on 16 February 2017, the Claimant had 14 days in which to bring an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002, expiring on 2 March 2017;
ii) during that period, the Claimant could not lawfully be detained because:
a) removal cannot take place when an appeal is pending (see section 78 of the 2002 Act), and
b) by reason of section 3C of the 1971 Act, quoted in § 23 above, the Claimant's leave to remain continued to exist during the 14 day period within which an in-country appeal could be brought , against the refusal decision;
iii) in addition, after the time limit for appealing expired on 2 March 2017, the Claimant could have made a further application to the Defendant under Immigration Rule 39E. The rule allows an application to be made, following the refusal of an in-time application for leave, within 14 days of inter alia the expiry of any leave extended by section 3C of the 1971 or the expiry of the time-limit for an appeal where applicable. The Claimant says that, as a result, he could not be removed "not least by virtue of 353A of the [Immigration] rules for example"; and
iv) the Claimant had made an Article 8 claim in his judicial review claim, issued on 10 March 2017, and could not properly be detained thereafter.
"78 No removal while appeal pending
(1) While a person's appeal under section 82(1) is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section "pending" has the meaning given by section 104.
(3) Nothing in this section shall prevent any of the following while an appeal is pending—
(a) the giving of a direction for the appellant's removal from the United Kingdom,
(b) the making of a deportation order in respect of the appellant (subject to section 79), or
(c) the taking of any other interim or preparatory action.
(4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92."
"(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.
…
(7) For the purposes of removing a person from the United Kingdom under subsection (1) or (2), the Secretary of State or an immigration officer may give any such direction for the removal of the person as may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.
…
(9) The following paragraphs of Schedule 2 to the 1971 Act apply in relation to directions under subsection (7) (and the persons subject to those directions) as they apply in relation to directions under paragraphs 8 to 10 of Schedule 2 (and the persons subject to those directions)—
…
(b) paragraph 16(2) to (4) (detention of person where reasonable grounds for suspecting removal directions may be given or pending removal in pursuance of directions)"
"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"(1) A person may be detained under the authority of the Secretary of State pending—
(a) a decision by the Secretary of State whether to give directions in respect of the person under section 10 of the Immigration and Asylum Act 1999 (removal of persons unlawfully in the United Kingdom) …, or
(b) removal of the person from the United Kingdom in pursuance of directions given by the Secretary of State under any of those provisions.
…
(3) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under this section: and for that purpose—
(a) a reference to paragraph 16 of that Schedule shall be taken to include a reference to this section,
…
(c) a reference to detention under that Schedule or under a provision or Part of that Schedule shall be taken to include a reference to detention under this section.
…
(7) A power under this section which is exercisable pending a decision of a particular kind by the Secretary of State is exercisable where the Secretary of State has reasonable grounds to suspect that he may make a decision of that kind."
"Where the appeal suspends removal, the ban on removal pending appeal does not however prevent detention under the administrative provisions of Schedules 2 and 3 to IA 1971. The powers to give directions for a person's removal or to make a deportation order against him or her while an appeal is pending enable those powers of detention to be exercised [footnote: NIAA 2002, s 78(3)]."
"47 Removal: persons with statutorily extended leave
(1) Where the Secretary of State gives written notice of a pre-removal decision to the person affected, the Secretary of State may—
(a) in the document containing that notice,
…
also give the person written notice that the person is to be removed from the United Kingdom under this section in accordance with directions given by an immigration officer if and when the person's leave to enter or remain in the United Kingdom expires.
(1A) In subsection (1) "pre-removal decision" means—
(a) a decision on an application—
(i) for variation of limited leave to enter or remain in the United Kingdom, and
(ii) made before the leave expires …"
Section 47 had been repealed by the date of the Refusal Decision, subject however to its preservation (applicable in the present case) by Article 9 of SI 2014/2771 for inter alia decisions made on or after 6 April 2015 to refuse an application to vary leave to enter or remain as a Tier 4 Migrant made before 20 October 2014 where the result of that decision was that the applicant had no leave to enter or remain.
"The administrative provisions of the IA 1971, Schedule 2, including the power to detain under paragraph 16 apply in relation to the directions given by an immigration officer under section 47. However, this does not mean that an immigration officer can detain a person as soon as a section 47 decision is made against him or her, a decision which may be made at the same time as, eg a decision refusing to extend the person's leave to remain. That is because an immigration officer will only be able to detain if there are 'reasonable grounds for suspecting that a person is someone in respect of whom' removal directions may be given. The immigration officer will only be able to give removal directions 'if and when' the statutory leave ends; whilst an appeal might be brought or an appeal is pending, the immigration officer has no power to give removal directions and so will be unable to have reasonable grounds for suspecting that removal directions may be given." (Macdonald, Immigration Law & Practice § 18.9)
The last footnote to this passage reads:
"The Minister (Tony McNulty) gave an assurance in Parliament that s 47 (as originally drafted) did not create any new power to impose restrictions on a person, eg to detain him or her, whilst the person has statutory leave: Hansard, 29.3.06, col 906."
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
i) an Article 8 claim need not be made by way of a formal application (see . Ahsan v The Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 § 14);
ii) the human rights issues are clearly raised at section G of the his judicial review grounds;
iii) the claim was issued on 10 March 2017 yet he was detained (with a view to removal) until 9 August 2017; and
iv) as from 10 March 2017, the Defendant could not reasonably suspect removal directions would be given in relation to the Claimant, as removal would have been contrary to the Defendant's policy in "Enforcement instructions and guidance":
"Chapter 60 – Judicial reviews and injunctions
2.1.1 Persons not suitable for removal window
The policy described here in paragraph 2.1 may not be used to give notice of removal to:
• Family cases
• Where the person has no leave but has made a protection (asylum or humanitarian protections) or human rights claim, or appeal, pending."
(F) ISSUE 4: LEGALITY OF CONTINUED DETENTION
(1) The law
(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 that 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.
"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."
"37 The Secretary of State acting through his officials has to determine whether the period of detention is reasonable when deciding whether or not to continue the detention, subject to the right of any detainee to apply for bail. It is a judgment which has to be made on the evidence and in the circumstances as appear to the officials in each case.
38 There is no period of time which is considered long or short. There is no fixed period where particular factors may require special reasons to make continued detention reasonable.
39 McFarlane LJ said in R (JS (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 1378 at paragraphs 50-51 that fixing a temporal yardstick might cause the courts to accept periods of detention that could not be justified on the facts of a particular case. In R (NAB) v Secretary of State for the Home Department [2010] EWHC 3137 (Admin) Irwin J made clear at paragraphs 77-80 that a tariff would be repugnant and wrong. He added:
"It would be wise for those preparing legally for such cases to abandon the attempt to ask the courts to set such a tariff by a review of the different periods established in different cases""
"…The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place."
"44 It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case. This has been made clear in a number of cases: see for example paragraph 54 of the judgment of Keene LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and the judgment of Lord Dyson in Lumba at paragraph 121.
45 Although the risk of absconding will therefore always be of paramount importance, a very careful assessment of that risk must be made in each case, as the magnitude of that risk will vary according to the circumstances. It may be very great, for example, where the person has, as in this case, a clear track record of dishonesty and a knowledge of how to "work" the controls imposed to regulate immigration in the European Union. Another example where the risk may be high is where the person refuses voluntary repatriation that is immediately available to him. It is important to emphasise that the risk of absconding is distinct from the risk of committing further offences and not dependent on that further risk. The risk of re-offending requires its own distinct assessment.
46 However, as is accepted on behalf of the Secretary of State, the risk of absconding cannot justify detention of any length, as that would sanction indefinite detention. It is therefore not a factor that invariably "trumps" other factors, particularly the length of detention. It is nonetheless a factor that can, depending on the circumstances, be a factor of the highest or paramount importance that may justify a very long period of detention"
"181 The absconding risk is important because a former detainee who absconds will be frustrating the public interest in favour of his deportation. The risk of reoffending is relevant but it must be less important, because the purpose of immigration detention is not to provide indirect facilitation to the separate policies and objects of the criminal law."
"120 … Time taken in the pursuit of hopeless challenges should be given minimal weight in the computation of a reasonable period of detention. Nor do I accept that it is undesirable (or indeed unduly difficult) to identify hopeless or abusive challenges. There exist statutory mechanisms to curb unmeritorious appeals. If a claim is "clearly unfounded", certification under section 94(2) of the Nationality, Immigration and Asylum Act 2002 precludes an in-country appeal. If a claim relies on a matter which could have been raised earlier in response to an earlier immigration decision or in response to a "one-stop notice", certification under section 96 of the 2002 Act precludes any appeal at all. In any event, a court considering the legality of a detention will often be able to assess the prima facie merits of an appeal. Where, as in the case of Mr Lumba, there have been orders for reconsideration, or where there has been a grant of permission to appeal to the Court of Appeal, the court will easily recognise that the challenge has some merit. Conversely, there may be one or more determinations from immigration judges dismissing claims as wholly lacking in credibility.
121 To summarise, I would reject the exclusionary rule. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. …The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one."
"64 … the approach of Toulson LJ in A (Somalia) seems to me to be particularly helpful when considering the issues raised here about the prospect of securing the claimant's removal to Somaliland. As Toulson LJ said, there must be a "sufficient prospect" of removal to warrant continued detention, having regard to all the other circumstances of the case (see [32] above). What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case.
65 I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to the established principles. ... Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was "some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be" (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released."
"36. … At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR's final decision would be such as to prevent the appellant's removal. I stress "apparent", because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain.
37. Mr Husain submitted that for continued detention to be lawful it was necessary for the Secretary of State to identify the timescale within which removal could be effected, whereas in this case the timescale was wholly uncertain. An argument along those lines was rejected in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112. …
38.Mr Husain submitted that that reasoning cannot live with the formulation of the Hardial Singh principles by the Supreme Court in Lumba, in particular at paras 103-104 where Lord Dyson said that a convenient starting point in the application of the principles to Mr Lumba's appeal was "to determine whether, and if so when, there is a realistic prospect that deportation will take place" and that "if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful", and where he went on to identify factors relevant to the question of how long it is reasonable to detain a person pending removal. There is nothing to show, however, that Lord Dyson was intending to address the point made in the passage quoted above from MH, and there does not seem to me to be any inconsistency between his observations and that passage. I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. At the time of receipt of the rule 39 indication in the appellant's case, although it was not possible to say when the ECtHR proceedings would be concluded, there was nonetheless a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances."
"60 My conclusion as to the disposal of this appeal would be the same whether it is for the court to decide if A's detention for the period in question was reasonably necessary or whether the court's role is limited to reviewing on a narrower basis the reasonableness of the Home Secretary's decision to exercise his power of detention during that period.
61 Mr Giffin advanced a subtle argument in support of the latter, based on certain passages in Tan Te Lam and Khadir, although I am not entirely clear what is the suggested scope of the court's power of review. Mr Giffin said that the test would be broader than whether the Home Secretary's decision was Wednesbury unreasonable and would involve "strict scrutiny", but it is less clear what strict scrutiny would connote in this type of case.
62 I intend no disrespect by not going into the refinements of Mr Giffin's argument but dealing with the matter on a broader basis. Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention, and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human (although Human Rights Act jurisprudence would tend in the same direction)."
"The Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing-line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained."
They are not to be applied rigidly or mechanically (Lumba § 115). The Court will make allowances for the way in which Government functions: HXA v The Home Office [2010] EWHC 1177 QB § 71.
"176 In unlawful detention cases, the court does not conduct a Wednesbury review but assumes the role of primary decision maker: see R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 , per Toulson LJ at paragraph 90. The court can take into account any facts that were known to the Defendant at the time, even if they did not feature in the reasons for detention that were furnished: see R(MS) v Secretary of State for the Home Department [2011] EWCA Civ 938. Hindsight is no part of the exercise: see R(Fardous) v Secretary of State for the Home Department [2015] EWCA Civ 931. The weight to be given to the Defendant's view is a matter for the court, although certain issues are more within the expertise of the executive than the judiciary, for example the progress of diplomatic negotiations and the attitude of other countries to accepting returnees. I would add that in my judgment the Defendant knows more than judges sitting in this jurisdiction about the absconding risk of immigration detainees."
"60 I have already expressed my opinion that the test for the lawfulness of a period of detention is one of reasonableness. The obligation of the Secretary of State is to cease detention when it becomes clear that detention is no longer required to effect removal but, in my view, common sense demands that a short period of grace is required for the decision-making process to take place which may include a decision as to the management of the detainee on release. First, there is, I think, a distinction between cases in which it is clear that removal directions will not be re-set (e.g. upon grant of ILR) and those in which the decision whether to re-set removal directions depends upon the outcome of proceedings (as in the present case). The Secretary of State will in the latter cases be concerned to ensure that she is kept aware of the whereabouts of the released detainee. That may require administrative arrangements for appropriate accommodation to be made available. I do not think that the Secretary of State is bound to release without regard to a residual risk of absconding (see, for example, R (Wang) v Secretary of State for the Home Department [2009] EWHC 1578 (Admin) ). Secondly, I do not consider, as Mr Husain argues, that the Secretary of State's assumption of responsibility for the welfare of these two children in detention can lightly be segregated from a responsibility to take reasonable steps to ensure that they are properly accommodated on release. There is no policy of the Secretary of State which requires case workers to turn detainees out of a detention centre without first ensuring that they can survive. On the contrary, it is the policy of the Secretary of State (EIG 55.6.3) that detention may be necessary "whilst alternative arrangements are made" for the detainee's care (provided, of course, that the purpose of detention was to effect removal). It is not difficult to envisage circumstances in which the Secretary of State could be said to be acting in dereliction of the duty undertaken by the act of detention if she took no action but to release the detained person immediately removal within a reasonable period became, as a matter of fact, not possible."
In that case a further detention of two days before final release was held to be lawful.
"55.6.3 Form IS91R Reasons for detention
This form is in three parts and must be served on every detained person, including each child, at the time of their initial detention. The IO or person acting on behalf of the Secretary of State must complete all three sections of the form. The IO or person acting on behalf of the Secretary of State must specify the power under which a person has been detained, the reasons for detention and the basis on which the decision to detain was made.
In addition there must be a properly evidenced and fully justified explanation of the reasoning behind the decision to detain placed on file in all detention cases. ...
It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure they are always justified and correctly stated by the IO or person acting on behalf of the Secretary of State who is completing the form. A copy of the form (fully completed and signed on both sides) must be retained on the caseworking file. If any of the reasons for detention given on the form IS91R change it will be necessary to prepare and serve a new version of the form. Again, any such changes must be fully justified and correctly stated by the IO or person acting on behalf of the Secretary of State who is completing the form. …"
"55.3 Decision to detain (excluding criminal casework cases)
1. There is a presumption in favour of temporary admission or temporary release - there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
2. All reasonable alternatives to detention must be considered before detention is authorised."
"55.8 Detention reviews
Initial detention must be authorised by a CIO/HEO or inspector/SEO (but see section 55.5). In all cases of persons detained solely under Immigration Act powers, continued detention must as a minimum be reviewed at the points specified in the appropriate table below. At each review, robust and formally documented consideration should be given to the removability of the detainee. Furthermore, robust and formally documented consideration should be given to all other information relevant to the decision to detain.
Monthly reviews should be conducted using the detention review template (ICD3469 or criminal casework equivalent). Additional reviews may also be necessary on an ad hoc basis, for example, where there is a change in circumstances relevant to the reasons for detention.
…
Table 1, below, sets out the minimum requirements in respect of the specific stages and levels at which reviews must be conducted
…
Table 1: Review of detention (non-criminal casework/ non- third country unit (TCU) cases) Review Period | Review Authorised by1: |
24 hours | Inspector/SEO2 |
7 days | CIO/HEO |
14 days | Inspector/SEO |
1st monthly | Inspector/SEO |
2nd monthly | Inspector/SEO |
3rd monthly | Inspector/SEO |
4th monthly | Inspector/SEO |
5th monthly | Inspector/SEO |
"Chapter 60 – Judicial reviews and injunctions
2.1.1 Persons not suitable for removal window
The policy described here in paragraph 2.1 may not be used to give notice of removal to:
• Family cases
• Where the person has no leave but has made a protection (asylum or humanitarian protections) or human rights claim, or appeal, pending."
(2) Application to the present case
i) whilst the Defendant did issue an IS.91R, the form was erroneous in the various conclusions it reached, in particular the statement that the Claimant had not complied with conditions (despite the lengthy correspondence from the Claimant showing that he was awaiting a 60-day decision or some other response from the Defendant);
ii) there were no grounds for believing that the Claimant would not comply: he had no history of non-compliance; he had been reporting and was detained on reporting; whatever the legal position on service of the Refusal Letter might be, the Defendant should have realised that the Claimant had not in fact received it until 16 February 2017 at the earliest;
iii) the Claimant was not an immigration offender or prolific absconder, and had remained in touch with the authorities;
iv) the Claimant was not a danger to the public;
v) all reasonable alternatives to detention appear not to have been considered, and the IS.91R decision did not explain why the Defendant was not satisfied that there was sufficient evidence to grant temporary admission;
vi) the Defendant had produced evidence of only a single detention review, dated 25 April 2017 despite the Claimant's detention for 5 months: in the course of the proceedings, however, the Defendant produced further detention reviews dated 28 February, 2 March, 10 March, 14 March, 28 March, 10 April, 25 April, 23 May, 20 June and 18 July 2017;
vii) it became apparent that the Claimant could not be removed within a reasonable time by, at the latest, the date on which he filed his judicial review application and claimed asylum, alternatively the date on which permission to apply for judicial review was granted. Moreover, the significance of the grant of permission was not addressed in the detention reviews; and
viii) the Defendant did not act with diligence to effect removal.
(G) ISSUE 5: SENIOR COURTS ACT SECTION 31(2A)
(H) OVERALL CONCLUSIONS
i) the Defendant's decision on 7 February 2017 that the Claimant is liable to administrative removal as an overstayer was lawful;
ii) the detention of the Claimant from 28 February 2017 to 23 June 2017 was lawful; and
iii) the detention of the Claimant from 24 June 2017 to 9 August 2017 was unlawful.