R HS v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 29 July 2019 |
| Neutral Citation | [2019] EWHC 2070 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3941/2018 |
| Date | 29 July 2019 |
[2019] EWHC 2070 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Walker
Case No: CO/3941/2018
Mr Tim Buley QC (instructed by Bhatt Murphy Ltd) for the claimant
Mr Neil Sheldon QC (instructed by the Government Legal Department) for the defendant
Hearing dates: 8 and 9 May 2019
JUDGMENT Approved
The Hon
| A. Introduction and immigration bail legislation | 4 |
| A1 Introduction: anonymity, detention & refusal to renew bail | 4 |
| A1.1 Anonymity, and October 2018 material as to torture | 4 |
| A1.2 HS arrives, commits a crime, and stays without permission | 4 |
| A1.3 The September 2016 detention decision | 4 |
| A1.4 Period 1: no bail | 5 |
| A1.5 Periods 2 and 3: HS is on bail | 5 |
| A1.6 Period 4 and refusal to renew bail | 5 |
| A1.7 The February 2017 FTT bail decision | 5 |
| A1.8 The March 2017 re-detention decision | 6 |
| A1.9 Grounds, evidence and legal representation | 6 |
| A1.10 Structure of this judgment, and EIG | 7 |
| A1.11 The outcome | 8 |
| A2 Immigration detention and bail legislation | 8 |
| A2.1 The Court of Appeal decision in Lucas | 8 |
| A2.2 Conditional bail, comprising FTT bail and CIO bail | 10 |
| A3 Conditional bail and a “person detained” | 11 |
| A3.1 Konan: Bail availability no bar to judicial review of detention | 11 |
| A3.2 A basic principle: bail only for those lawfully detained | 11 |
| A3.3 The 2016 Act confers retrospective powers of bail | 13 |
| B. History of events | 14 |
| B1 Events up to 13 February 2017 | 14 |
| B1.1 Spouse application, sexual offence arrest, permission expiry | 14 |
| B1.2 Criminal proceedings 15 August 2012 to 14 January 2016 | 14 |
| B1.3 Sentencing 14 January 2016 and prison to 12 September 2016 | 14 |
| B1.4 Prison sentence conditional release, 12 September 2016 | 15 |
| B1.5 Immigration detention & OASys, 12 Sep & 21 Dec 2016 | 15 |
| B1.6 Bail application to the FTT: the Halesowen address | 16 |
| B1.7 The FTT hearing and decision on bail, 8 February 2017 | 16 |
| B1.8 The FTT bail: primary and secondary conditions | 16 |
| B1.9 Grant of CIO bail from 13 February 2017 onwards | 17 |
| B2 Events from 14 February to 5 March 2017 | 17 |
| B2.1 Concerns about the Halesowen address | 17 |
| B2.2 The re-detention minute of 3 March 2017 | 18 |
| B3 Re-detention and documents: 6 March 2017 | 20 |
| B3.1 Re-detention on 6 March 2017 | 20 |
| B3.2 The 6 March asylum refusal, including certification | 20 |
| B3.3 The 6 March detention reasons | 21 |
| B4 Events from 7 March to 27 April 2017 | 21 |
| B4.1 Medical examinations at Morton Hall IRC, 7 March 2017 | 21 |
| B4.2 Colnbrook IRC 14–16 March: ETD & mirtazapine 30 mg | 22 |
| B4.3 JR challenge to certification, lodged 29 March 2017 | 22 |
| B4.4 Mental health review, 3 April 2017 | 23 |
| B4.5 First progress report, and detention review, 1 & 3 April 2017 | 23 |
| B4.6 First Rule 35 report by Dr Dighe, 8 April 2017 | 30 |
| B4.7 Second mental health review, 13 April 2017 | 30 |
| B4.8 First Rule 35 response, 15 April 2017: Level 2 assessment | 31 |
| B4.9 De-certification, 21 April request for release, 27 April appeal | 32 |
| B4.10 Second progress report, 26 April 2017 | 33 |
| B5 Events from 28 April to 25 May 2017 | 33 |
| B5.1 Second detention review, 28 April 2017 | 33 |
| B5.2 Third progress report, 4 May 2017 | 35 |
| B5.3 Reply 4 May 2017 to 21 April release request | 35 |
| B5.4 Fourth progress report, 23 May 2017 | 36 |
| B5.5 Home Secretary/FTT exchange as to “correct decision letter” | 36 |
| B5.6 HS applies for section 4 support, 24 May 2017 | 36 |
| B5.7 Release address: Dicksons/PC Baker 10 to 24 May 2017 | 36 |
| B6 Events from 26 May to 23 July 2017 | 38 |
| B6.1 Third detention review, 26 May 2017 | 38 |
| B6.2 HS proposes the first Cobridge address, 1 June 2017 | 38 |
| B6.3 Fifth progress report 5 June 2017 | 39 |
| B6.4 Sixth progress report 20 June 2017 | 39 |
| B6.5 Report on the first Cobridge address, 21 June 2017 | 39 |
| B6.6 Fourth detention review, 23 June 2017 | 39 |
| B6.7 Mirtazapine increased to 45mg daily, 28 June 2017 | 40 |
| B6.8 Home Office default causes appeal adjournment, 11 July 2017 | 40 |
| B6.9 Steps taken in relation to s 4 support, July 2017 | 40 |
| B6.10 Release address: developments 11 to 23 July 2017 | 40 |
| B7 Events from 24 July to 24 August 2017 | 41 |
| B7.1 Fifth detention review & seventh progress report, 24 July 2017 | 41 |
| B7.2 The 28 July asylum/ deportation letter | 42 |
| B7.3 Pre-action correspondence, 2 to 17 August 2017 | 42 |
| B7.4 Sixth detention review & 8 th progress report, 21 August 2017 | 42 |
| B7.5 Release address: developments 24 July to 25 August 2017 | 44 |
| B8 Events from 25 August to 19 September 2017 | 44 |
| B8.1 Lodging of claim, & order of Nicola Davies J, 25 August 2017 | 44 |
| B8.2 Order of May J, 1 September 2017 | 45 |
| B8.3 Second Rule 35 report, 2 September 2017 | 45 |
| B8.4 Response to second rule 35 report, 7 September 2017 | 45 |
| B8.5 London Road release address rejected, 12 September 2017 | 46 |
| B8.6 Seventh detention review, 13 September 2017 | 46 |
| B8.7 Order of Ms Leigh-Ann Mulcahy QC, 19 September 2017 | 49 |
| C. JR ground 1: abuse of power | 50 |
| C1 JR ground 1: background | 50 |
| C1.1 HS's stance in the original ground 1 | 50 |
| C1.2 Court of Appeal decision in Lucas | 50 |
| C2 Current ground 1: an extended obligation | 50 |
| C2.1 The extended honour obligation | 50 |
| C2.2 Ground 1: what is not in dispute | 51 |
| C2.3 Nature of the extended honour obligation | 51 |
| C2.4 The court's jailor control role: A (Somalia) | 52 |
| C3 Supreme Court decision in Evans v Attorney General | 56 |
| C3.1 Evans: HS's reliance on Lord Neuberger's principles | 56 |
| C3.2 Evans: the executive reviewability principle | 58 |
| C3.3 Evans: the binding judicial decisions principle | 58 |
| C3.4 Evans: my conclusion on Lord Neuberger's principles | 59 |
| C4 High Court decision in S | 60 |
| C4.1 R (S) v SSHD [2006] EWHC 228 (Admin): the decision | 60 |
| C4.2 S: arguably unlawful re-detention on 27 Jan 2006 | 61 |
| C4.3 S: lawfulness of the 4 February 2006 notice | 61 |
| C4.4 S: submissions and analysis | 62 |
| C5 Court of Appeal decision in AR (Pakistan) | 63 |
| C6 High Court decision in Lupepe | 65 |
| C7 High Court decision in Gafurov | 68 |
| C8 Conclusion on JR ground 1 | 69 |
| C8.1 Three different contexts | 69 |
| C8.2 Disobeying or interfering with the tribunal's order | 70 |
| C8.3 Powers to override or vary the tribunal's order | 70 |
| C8.4 Calling into question the FTT's reasoning | 71 |
| D. JR ground 2: legal principles governing detention | 74 |
| D1 JR ground 2: relevant legal principles | 74 |
| D2 Relevant Lumba principles in the present case | 76 |
| D3 Lumba principle (2): length of detention | 76 |
| D4 Lumba principle (4): diligence and expedition | 77 |
| D5 Conclusion on JR ground 2 | 78 |
| E. JR ground 3: the AR policy | 78 |
| E1 JR ground 3: relevant aspects of the AR policy | 78 |
| E2 Analysis of alleged breaches of the AR policy | 83 |
| E3 Conclusion on JR ground 3 | 85 |
| F. JR ground 4: reasons for detention | 85 |
| F1 JR ground 4: the true reason principle | 85 |
| F2 The true reason: concerns about the Halesowen address | 86 |
| F2.1 The new information, what it made imperative, & for how long | 86 |
| F2.2 Was the true reason communicated to HS on 6 March 2017? | 87 |
| F2.3 Request not to share the new information with HS | 88 |
| F3 Other breaches of the true reason principle | 88 |
| F4 Conclusion on JR ground 4 | 89 |
| G. Overall conclusion | 89 |
A. Introduction and immigration bail legislation
A1 Introduction: anonymity, detention & refusal to renew bail
A1.1 Anonymity, and October 2018 material as to torture
By orders of Mrs Justice Nicola Davies dated 25 August 2017 and Mrs Justice May dated 1 September 2017 the claimant in these proceedings is to be known as “HS”. I stress that this means that no report of these proceedings may identify him. The reason for that order is that HS seeks asylum, and in that regard makes an assertion that he has been tortured by state agents in Pakistan. In November 2017 that assertion was rejected by the First-tier Tribunal (“FTT”). However in October 2018 new immigration solicitors for HS wrote a letter to the defendant Home Secretary enclosing a report by Dr Jillian Creasy of the Medical Foundation for the Care of Victims of Torture. The letter was described as a fresh application for asylum on account of fresh information and grounds. The letter also asked for consideration of HS's human rights in respect of the information and grounds. At the time of the hearing before me on 8 and 9 May 2019 there had not been any substantive response by the Home Secretary to that letter.
A1.2 HS arrives, commits a crime, and stays without permission
In February 2011 HS, who is a national of Pakistan and was then aged 22, arrived in this country with entry clearance for a limited period. His entitlement to be here was extended for some months when he made an application to stay here as a spouse. He remained here without permission when the spouse application was withdrawn.
In reality, even if (which he did not) HS had wanted to leave the UK, HS had little option but to stay here. During the period when he had permission to be here he was charged with rape. Bail conditions, imposed initially by the police and later by the court, continued after the date when he ceased to have permission to be here. Compliance with those conditions required him to remain here. Eventually the charge of rape was not pursued when he pleaded guilty to sexual activity with a girl under 16, leading to a sentence of 16 months' imprisonment....
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