(1) Mahammad Razai (2) Arben Draga and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 02 December 2010 |
| Neutral Citation | [2010] EWHC 3151 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5757/2010 & CO/8782/2010 |
| Date | 02 December 2010 |
[2010] EWHC 3151 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon. Mr Justice Nicol
Case No: CO/5757/2010 & CO/8782/2010
Nick Armstrong (instructed by Pierce Glynn) for Messrs. Razai, Draga and Rashid and (instructed by Luqmani Thompson and Partners) for Mr K
Jeremy Johnson (instructed by Treasury Solicitor) for the Defendant
S. Chelvan (instructed by Allen & Overy) for Bail for Immigration Detainees, intervening
Hearing dates: 18 th & 19 th October 2010
Mr Justice Nicol :
At the time they started their applications for judicial review each of these four Claimants was in immigration detention. They wanted to apply for bail. In practice an Immigration Judge was likely to make any grant of bail conditional on residence at a specified address. None of these Claimants had an address to offer. However, the Secretary of State for the Home Department (the 'SSHD') is empowered by Immigration and Asylum Act 1999 s.4 to make accommodation available for immigration detainees who are released on bail. Each of the Claimants applied for accommodation under that provision. In these proceedings they allege that those applications were handled unfairly and unlawfully and that there was an unlawful delay before the applications were finally decided. Cranston J. granted Razai, Draga and Rashid permission to apply for judicial review. Mr Tim Owen QC, sitting as a Deputy Judge of the High Court, granted permission to K and ordered his case to be heard at the same time as the other three. Bail For Immigration Detainees ('BID') is a charity which, as its name suggests, provides assistance to immigration detainees who wish to apply for bail. BID applied to intervene because, it said, the experience of these claimants was symptomatic of a wider problem experienced by immigration detainees who were characterised as high risk when they applied for a bail address. On 30 th September 2010 Ouseley J. granted BID's application for permission to intervene. I am grateful for the assistance which they have provided through written submissions, evidence from their Assistant Director, Pierre Makhlouf, and the oral submissions of Mr Chelvan.
The factual background of the Claimants
Mahammad Razai
Mr Razai is Iranian. He came to the UK on 23 rd May 2004. He applied for asylum but was refused and his appeal was dismissed. In 2005 he was sentenced to 3 months imprisonment for motoring offences. He went to Germany and Ireland, but returned to the UK and claimed asylum again. This was refused without a right of appeal. On three occasions he was convicted of failing to comply with requirements set by the SSHD to enable him to be issued with travel documentation. He was sentenced to terms of imprisonment of 3 months, 12 months and 12 months. He was released from his final sentence of imprisonment on 2 nd November 2007 and was then detained under the Immigration Act 1971 Schedule 3 pending his deportation. He had been served with a decision to deport on 30 th October 2007. He did not appeal that decision. The deportation order itself was served on 31 st May 2008. Between October 2008 and December 2009 Mr Razai made 13 bail applications. In advance of three of these applications the SSHD had allocated accommodation for him in the event that he was released, but he was not.
On 2 nd February 2010, he applied for accommodation again. On 8 th February 2010 BID (who were then acting on his behalf) spoke to the UK Border Agency. They were told that his application had been refused because he was regarded as posing a serious risk of harm. As a result, he withdrew his next bail application which had been due to be heard on the following day. On 12 th May 2010 he had another bail application. The Immigration Judge said that in principle bail should be granted, but it was refused because no accommodation was available.
On 29 th June 2010 Mr Razai was offered accommodation by the SSHD and he was granted bail on 7 th July 2010.
In the SSHD's detailed grounds for opposing the claim reference is made to allegations about Mr Razai's behaviour while in custody. These or the details of them are disputed but the allegations were as follows. In February 2008 he made threats to burn down the library. In September 2008 he was violent and threatening and made threats to kill an officer. In November 2008 he was aggressive and abusive towards staff and attempted to assault the detention manager. In February 2009 he was fighting with another detainee and damaged property. In July 2009 he was threatening and intimidating towards a female member of staff. In November 2009 he made a series of abusive telephone calls to immigration offices and was informed that his case owner would no longer accept calls from him.
Arben Draga
Mr Draga is Kosovan. He came to the UK in 2001 as an unaccompanied minor. His asylum claim was accepted and he was granted indefinite leave to remain in the UK. He received a reprimand for shoplifting in 2002 and cautions for possession of drugs in 2003 and 2005. In May 2005 he was convicted of possessing heroin with intent to supply and sentenced to 18 months imprisonment. In March 2006 he was arrested and charged with possession of an imitation firearm, although the prosecution was not pursued.
On 2 nd August 2006 he was arrested and detained because the SSHD had decided to make a deportation order against him. He appealed but the appeal was dismissed in February 2007. He sought reconsideration of that decision. He was granted bail on 30 th March 2007. Reconsideration was refused, the SSHD signed the deportation order and Mr Draga was re-detained on 30 th November 2007. Mr Draga had also, while on bail, been found in possession of a knife in a public place. No charges were brought in relation to that. In due course he asked the SSHD to revoke the deportation order. The SSHD refused but on 8th September 2010 his appeal was allowed, the SSHD was refused permission to appeal and in the course of the present hearing the SSHD accepted that some form of leave to remain in the UK would be granted to him. Because some form of leave to remain in the UK would be given to him I have rejected the application made on his behalf that his identity should be concealed. He was eventually granted bail on 30 th September 2010 and released on 2 nd October 2010 with a condition that he live at an address provided by the SSHD.
Mr Draga was thus in immigration detention between 30 th November 2007 and 2 nd October 2010. He applied for bail unsuccessfully in February, April and November 2008 and July and December 2009. He was offered accommodation under s.4 of the 1999 Act in advance of the bail hearing in July 2009. Mr Draga has brought separate proceedings challenging the length of his immigration detention. In the course of them he applied unsuccessfully for bail to Owen J. on 15 th June 2010.
Of more direct relevance to the present proceedings, is the application he had made for accommodation on 25 th November 2009. His representatives were told sometime in January 2010 that he was regarded as high risk. Nothing further was heard until the day before the hearing of an application for interim relief in the present proceedings was due to take place. On that day, 28 th June 2010, the SSHD did then offer accommodation. However, Mr Draga did not apply for bail in reliance on that address and the offer lapsed. Mr Draga applied again for accommodation in September 2010. This was granted and it was to this address that he was given bail on 30 th September 2010. Since the SSHD is no longer proposing to deport Mr Draga, I assume that his bail has come to an end.
Ahmed Rashid
Mr Rashid is Iraqi. He came to the UK clandestinely in 2002. His asylum claim was refused and his appeal dismissed in 2004.
He has a poor criminal record. Although the evidence is not clear as to all the details, the following emerges. In December 2003 he was sentenced to 18 months imprisonment for wounding and was recommended for deportation. He accumulated convictions for advertising prostitution (2005), possessing or selling goods with a false trademark (January, June and October 2008), damaging property (September 2008), assaulting a constable, failing to surrender to custody and breaches of a conditional discharge (December 2008). Then in February 2009 he was convicted of using threatening, abusive or insulting words or behaviour with intent to cause fear or provoke violence and having a bladed article in a public place. That appears to have attracted a custodial sentence which came to an end in April 2009, but thereafter he was detained pursuant to the automatic deportation provisions in the UK Borders Act 2007.
Mr Rashid was also found guilty of offences against prison discipline (March 2009) and possession of an unauthorised item (June 2009). In addition, the UKBA was informed by the police that they had serious child protection concerns regarding him.
Mr Rashid applied for accommodation as a bail address from the SSHD on 12 th November 2009 and 12 th March 2010. His application was refused by the SSHD in a letter dated 30 th June 2010.
Against a refusal there is a right of appeal – see Immigration and Asylum Act 1999 s.103. In the past the appeal lay to Asylum Support Adjudicators. By the ...
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