Grzegorz Machnikowski v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 22 January 2016 |
| Neutral Citation | [2016] EWHC 54 (Admin) |
| Date | 22 January 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3695/2015 |
[2016] EWHC 54 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
(Handed down at Preston Law Courts
Openshaw Place, Ringway,
Preston, PR1 2LL)
The Honourable Mr Justice Kerr
Case No: CO/3695/2015
Martin Westgate QC and Catherine Meredith (instructed by Leigh Day) for the Claimant
Holly Stout (instructed by Government Legal Department) for the Defendant
Hearing date: 15 December 2015
I heard this judicial review application on 15 December 2015. It was made by permission of Blake J, who gave leave limited to the issues (a) whether the detention of the claimant had lasted too long and so become unlawful and (b) whether the defendant unlawfully failed to provide him with accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999 ("the 1999 Act"). The claimant is a Polish national now aged 31, born in June 1984. He arrived in this country aged 22, in May 2007.
When Blake J gave permission in those terms, there was considerable urgency as the claimant was then still in custody. By the time the hearing before me took place he had (on 2 December 2015) been released and required to provide an address, which he has done. However, his present circumstances are difficult as his accommodation is short term and inconvenient to him and to the provider who has kindly provided a roof over his head.
Under European and domestic law relating to free movement and freedom to work, the claimant required five years' continuous residence in this country to acquire a permanent right of residence. He had various jobs but did not acquire such a right because custodial sentences do not count towards the period and indeed (it is common ground) the five year period starts afresh on each release from custody for a criminal offence.
Unfortunately, the claimant committed and was sentenced for 13 offences including common assault, having a bladed article in a public place, breaching a community order, theft, disorderly behaviour, making off without payment, using a vehicle uninsured, failing to surrender to custody, breach of a conditional discharge and affray.
The latter offence was the most serious. The sentencing judge said the claimant lost control and armed himself with a piece of wood in order to alarm and terrify those with whom he came into contact. For that offence he was sentenced to 12 months' imprisonment at Ipswich Crown Court on 20 September 2012, having earlier pleaded guilty at the first opportunity. He had served 155 days on remand in custody and was therefore soon eligible for release.
But he then had the misfortune to move seamlessly into immigration detention rather than being set at liberty. That was because the defendant decided in October 2012 to make a deportation order and to place the claimant in immigration detention pending deportation. His representations against that proposed course were unsuccessful and the deportation order was signed on 11 December 2012, when a bail application was rejected. He then languished in detention until last month when, as I have said, he was released.
The usual detention reviews have punctuated his time in immigration detention, taking place at approximately lunar monthly intervals. A recurrent feature of those reviews has been a perceived substantial risk of absconding and of re-offending, in view of his bad criminal record including an offence of failure to answer bail and breaches of court orders, as well as a concern that his offending has included violence. He was assessed in October 2012 as posing a medium risk of serious harm to the public.
At the end of December 2012, removal directions were set since, although the claimant had appealed against his deportation order, the appeal was out of time. However, on 3 January 2013 the First-tier Tribunal ("FTT") granted him permission to appeal out of time. This meant the claimant was no longer regarded as "appeal rights exhausted"; as a result, the deportation order was regarded as invalid and was revoked on 8 January 2013.
Delay then ensued before the appeal was heard, first because the claimant changed solicitors and then because the new solicitors needed time to prepare. The appeal was not heard until 31 May 2013 and the decision, adverse to the claimant, was given on 12 June 2013.
He then successfully obtained permission to appeal to the Upper Tribunal, which was granted by Judge Parkes, a judge of the FTT, on 5 July 2013. The judge regarded as arguable the proposition that, because the claimant had lived in this country for more than five years, he was entitled to avoid deportation unless there were serious grounds of public policy or public security justifying deportation.
Unfortunately, it took over a year for the claimant's appeal to the Upper Tribunal to take place and judgment was then reserved for some five months. It is unnecessary to say much about this period of the claimant's detention because he has already, in a previous judicial review application, been refused leave to argue that his detention during it was unlawful. However, some points do deserve mention.
The first is that in the summer of 2013, the claimant refused to eat and drink at regular mealtimes, though he was observed eating and drinking at other times. The second is that in August 2013 it emerged that two inconsistent policy documents of the defendant relevant to the claimant's contested deportation, remained on the Home Office's website. This was an error.
An outdated policy document, which should have been removed but had not been, would if applied to the claimant have given him an expectation of not being deported, because his prison sentence for affray was for under two years. The more recent policy document, which was current and had been applied to the claimant, pointed to deportation of EEA nationals sentenced to 12 months or more for offences of violence among other offences.
Then in the latter part of 2013, the claimant was involved in two alleged misconduct issues and, in consequence of the second, transferred to a different location. Meanwhile, the Upper Tribunal had adjourned his appeal to await the decision of the Court of Justice of the European Union in Onuekwere v. SSHD ( Case C-378/12), in which judgment was subsequently given on 16 January 2014.
That decision was expected to determine whether periods in prison count towards acquisition of permanent residence rights for EEA nationals. The decision had been expected in November 2013. When it was given in January 2014, it became clear that the claimant's time in prison for criminal offences prevented the five year period from running and restarted the "clock" on release. The decision does not in terms apply also to immigration detention.
By the time the claimant's appeal to the Upper Tribunal finally took place on 21 July 2014 the claimant's then solicitors had (in May 2014) obtained a psychiatric report about him, which supported the view that there was a medium risk of re-offending if he were released, although the risk of serious harm to others was said to be low.
After the appeal had taken place but before judgment, the claimant applied on 8 October 2014 for permission to bring judicial review proceedings challenging the lawfulness of his detention on Hardial Singh grounds. That application for permission was refused by His Honour Judge Behrens, sitting as a judge of the High Court on 5 December 2014. The judge, refusing leave, commented:
… there is a significant risk of re-offending and of absconding. The appeal process in relation to the lawfulness of the deportation order has not been exhausted. I agree that in those circumstances the reasonable period for detention set out in Hardial Singh and later authorities has not arguably been exceeded and will at least cover the point when the UT delivers it judgment. I express no view about future detention.
I interrupt the narrative to record that the parties addressed me on the impact of that order refusing leave. Ms Stout submitted that, while the formal doctrine of res judicata does not apply to judicial review proceedings, in practice a further challenge to the legality of detention up to the date of the Upper Tribunal's decision is barred because to bring one would be an abuse of process.
Ms Stout referred me to the Court of Appeal's endorsement of that proposition by Professor Wade in the then current edition of his Administrative Law (5th edition, 1982) at page 246, by the Divisional Court in R v. Secretary of State for the Environment ex parte London Borough of Hackney [1983] 1 WLR 524 at 539 (May LJ giving the judgment of the court). In the same case, the Court of Appeal upheld that view: see [1984] 1 WLR 592 per Dunn LJ at 602A-B.
Mr Westgate QC, for the claimant, did not strongly argue that I should find the detention unlawful as from a date prior to the Upper Tribunal's decision on his appeal. But he reminded me that this does not make the period of detention down to that date irrelevant; on the contrary it is part of the history relevant to whether the detention became unlawful subsequently. He therefore took me in some detail to the events up to December 2014 as well as thereafter.
On this point, I agree with both parties' observations. Ms Stout is right that it would be an abuse of process to revisit the conclusion of Judge Behrens that the detention up to December 2014 was lawful. But Mr Westgate is right that this does not mean events prior to December 2014 are irrelevant. They contribute to the overall history and, in particular, to the duration of the detention overall which I have to consider. The question is whether the detention has become...
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R (Jonas Lauzikas) v Secretary of State for the Home Department
...of the necessity of the deportation (with which the detention is linked). The second is the judgment of Kerr J in Machnikowski v SSHD [2016] EWHC 54 (Admin) [2016] 1 WLR 1655. Mr Anderson also relied on the absence of a necessity test for detention under ECHR Article 5(1)(f), together with ......