R Ameth Diop v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | David Pittaway |
| Judgment Date | 26 July 2018 |
| Neutral Citation | [2018] EWHC 1934 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5657/2017 |
| Date | 26 July 2018 |
[2018] EWHC 1934 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Pittaway QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CO/5657/2017
Mr Anthony Vaughan (instructed by Leigh Day) for the Claimant
Mr Eric Metcalfe (instructed by Government Legal Department) for the Defendant
Hearing date: 13 June 2018
Judgment Approved
David Pittaway QC:
By a claim form issued on 5 December 2017, the claimant challenges the defendant's delay in providing him with bail accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999. He alleges unlawful detention from 10 November 2017. Suitable accommodation was notified for the claimant on 1 December 2017, offered to him on 5 December 2017 and he was released from detention on 7 December 2017. Permission to proceed with the claim was granted by John Howell QC, sitting as a deputy High Court Judge, on 5 February 2018.
There is a full chronology in the Summary Grounds of Defence. The claimant is a national of Senegal. He first arrived in the UK on 8 December 2010 with entry clearance as the dependent of his British spouse Mrs Summerhill whom he had met in Spain whilst she was on holiday. That leave was extended and expired on 1 June 2012. Mrs Summerhill gave birth to their daughter and son, respectively, on 20 May 2010 and 3 September 2013. On 18 December 2012 the claimant applied for an EEA residence card on the basis of his relationship with Mrs Summerhill, which was refused on 6 June 2013. He became appeal rights exhausted in respect of that appeal on 23 March 2013. He has been convicted of eight serious and violent criminal offences, all relating to domestic violence. Two of those assaults had been in the presence of children. In November 2013 he was convicted of assault and vandalism and sentenced to two months imprisonment. His victim was Ms Summerhill's mother. On 4 March 2015 he was convicted of assault and domestic abuse and sentenced to eight months imprisonment. His victim was a former partner. On 10 November 2015 he was convicted of hamesucken, assaulting a person in their own house, and he was sentenced to 22 months and 18 days imprisonment. His victim was a former partner and the assault occurred in front of her daughter.
On 10 December 2015 the claimant was served with a decision to deport him under section 32(5) of the UK Borders Act 2007. He submitted representations against deportation on the basis of the relationship he had with his two children. The decision was certified on 28 July 2015. He lodged an out of time appeal on 8 August 2016 which was dismissed on 8 February 2017. Before the claimant finished his custodial sentence, the defendant made an application for an emergency travel document on 9 August 2016, with his expired passport as supporting evidence. The claimant refused to attend the embassy for an interview on 18 August 2016.
On 11 October 2016 the claimant made a section 4 request for bail accommodation. The section 4 bail team contacted criminal casework who completed and submitted the section 4 bail accommodation information proforma. He was assessed as being at high risk of re-offending and of causing serious harm. On 14 October 2016 the section 4 bail team and criminal casework considered that whilst his prior offences did not automatically categorise him as level 3, his pre-disposition to assault his peers and cell mates within the custodial environment led to a real risk of harm to those who might reside in close proximity to him. Accordingly, shared facilities were not considered appropriate. On 20 October 2016 the section 4 bail team submitted to the accommodation provider that he required level 3 self-contained accommodation. A response by 2 November 2016 was requested. The claimants legal team sent a pre-action protocol letter, challenging the defendant's delay in providing a bail address, on 9 March 2017, which elicited a response on 22 March 2017 that there was difficulty obtaining suitable accommodation. There is nothing in the records to indicate that the application was expedited or that a request was made for it to be expedited by the defendant, contrary to the suggestion in the defendant's response of 22 March 2017.
Meanwhile, on 8 February 2017 the claimant applied for asylum based on his fear of persecution following his recent conversion to Christianity. He was interviewed on 13 March and 8 May 2017. He was served with his asylum refusal letter on 15 May 2017. He was refused permission to appeal to the FTT on 5 July 2017. He became appeal rights exhausted on 28 September 2017. Further applications for section 4 bail accommodation were made on 29 June and 14 August 2017. It was not until 4 September that the defendant sent an email chasing the accommodation provider, followed by further emails on 11 September 2017 and 14 October 2017. On 1 November 2017 the claimant's first bail application was made by Bail for Immigration Detainees (BID), a charity acting on his behalf. On 2 November the Detention Review considered that continued detention was proportionate. On 3 November 2017, the Senegalese Embassy wrote to BID stating that they were not willing to provide an emergency travel document to the Claimant. On 9 November 2017 the Senegalese Embassy refused to issue an emergency travel document. On 10 November 2017 the claimant was granted bail in principle subject to suitable accommodation being obtained within a 14 day window. The search for accommodation was not escalated until 24 November 2017. The bail application was relisted by FTT on 27 November 2017. On 1 December 2017 the FTT extended grant of bail on the same terms as before with a new 14 day window for accommodation to be found for the Claimant.
Section 4(1)(c) of the Immigration and Asylum Act 1999 confers a power on the defendant to provide accommodation to persons released on bail. Under the defendant's policy, “ Asylum Support, Section 4 Policy and Process, version 7 (“the Section 4 policy”) at paragraphs 5.4–5.5, a person is eligible for bail accommodation under section 4(1)(c) if they are detained, intend to apply for bail and would be destitute upon release; and the defendant can find suitable accommodation.
The defendant's guidance Home Office, (July 2014), ‘Section 4 bail accommodation’, Version10.0, Section 18: Section 4 Bail Address Applications by Applicants states:
“Bail accommodation is provided in the form of Initial Accommodation with shared facilities (followed by a move to dispersal accommodation within a couple of weeks), Standard Dispersal Accommodation which is self-contained to a greater or lesser degree, or Complex (bespoke) Bail Accommodation. Section 4 (1)(c) support can be refused by the Home Office where the cost of sourcing bespoke accommodation in any one case is considered too high, and such a refusal attracts a right of appeal to the Asylum Support Tribunal.
If a detained applicant for Section 4 bail accommodation has been convicted of a criminal offence, at an early stage in the application process Home Office staff are required to determine the nature of the offence, make enquiries of the National Offender Management Service (NOMS) and IRC centre management, and then identify and allocate the appropriate type of Section 4 accommodation to be sourced. Health and access issues may also be considered by the Home Office at this stage”
Annex A of the above guidance states:
“A.1.1 The Authority expects that the substantial majority of dispersals shall take place within 9 Working Days of the Provider receiving the relevant Accommodation Request. However, the Authority may give notice of less than 9 Working Days (see 2.8.1)
…
A.1.4 The Provider must submit Accommodation Proposals to the Authority by the time required in the relevant Accommodation Request” (Home Office, 2012: 72) Since 2012, the Home Office has procured Section 4 accommodation, including Section 4 (1)(c) bail accommodation, from three firms (G4S, Serco, and Clearel) under COMPASS35 contracts36.”
Once a provider has allocated Section 4 (1)(c) bail accommodation and given details of the accommodation to the Home Office, if an applicant is still on licence then it is a standard condition of any release licence that accommodation must meet the approval of the probation service. Similarly an individual still within their licence period seeking release on immigration bail to Home Office Section 4 (1)(c) accommodation must have that accommodation approved by probation services.
I have been referred to the judgment in R (Sathananthan) v SSHD [2016] EWHC 1781 (Admin), [2016] 4 WLR 128 in which Edis J formulated the principles to be applied. I have set out the main extracts which are relevant to this claim:
“14 Chapter 5 of the UKVI s.4 Policy contains instructions to the Section 4 Bail Team for dealing with applications for bail accommodation. An application form is required. These applicants may be asylum seekers (who could also apply under s.95), failed asylum seekers (who could also apply under s.4(2) and (3)) or people who have never had an asylum application but are otherwise in detention under any provision of the Immigration Acts. There are three types of accommodation provided by the SSHD (acting through UKVI) under the UKVI s.4 Policy, and in this respect as in others the content of the Home Office s.4 Policy is very similar (often identical). The three types of accommodation are:-
i) Initial Accommodation ( IA), or Level 1 accommodation. This is usually hostel type accommodation which is short term. People stay in such accommodation while more suitable long term accommodation is found. This can be used for bail applicants, but is...
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