R (on the application of SHOTE) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Michael Fordham |
| Judgment Date | 23 January 2018 |
| Neutral Citation | [2018] EWHC 87 (Admin) |
| Date | 23 January 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1644/2017 |
[2018] EWHC 87 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Fordham QC
(Sitting as a Deputy High Court Judge)
Case No: CO/1644/2017
Shaheen Haji and Tiki Emezie Solicitor-Advocate (instructed by Dylan Conrad Kreolle) for the Claimant
Jennifer Thelen (instructed by Government Legal Department) for the Defendant
Hearing date: 7 November 2017
Judgment Approved
Mr Michael Fordham QC:
INTRODUCTION
This claim for judicial review concerns the legality of immigration detention. On 21 March 2017 the Secretary of State decided to remove the claimant. In conjunction with that proposed removal, the claimant was detained (under immigration detention powers in paragraph 16(2) of Schedule 2 to the Immigration Act 1971) on 30 March 2017 when she appeared as required at Croydon Reporting Centre. Immigration detention continued until the claimant was released on bail on 2 May 2017. All of the issues raised in the claim, and all of the remedies sought, concern the legality of those 33 days of detention.
Several of the claimant's arguments invoke a principle of law to which I will refer as “Hardial Singh 3”. Under Hardial Singh 3 the Secretary of State should not exercise a power of immigration detention where it is – or has become – apparent that she will not be able to effect removal within a reasonable time. See R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §22, where Lord Dyson (with whom a majority of the Supreme Court agreed) approved this and the other principles identified by Woolf J in R v Governor of Durham Prison, ex p Hardial Singh [1974] 1 WLR 704.
Permission for judicial review was granted on 1 June 2017, with directions for filing of documents including any grounds of resistance and skeleton argument by the Secretary of State. She had not filed an acknowledgment of service at the permission stage. Following the grant of permission, a listing appointment was attended by the parties' representatives on 22 June 2017 and the substantive hearing was fixed for 7 November 2017. The detailed grounds and evidence of the Secretary of State were due on 6 July 2017, but these were not filed until 31 October 2017, after the claimant's skeleton argument. No good reason for this has been put forward. The Secretary of State, recognising her default, filed an application dated 3 November 2017 seeking an adjournment on the papers and offering to pay the costs thrown away. That adjournment was opposed in writing and, in the circumstances, I declined to grant it on the papers and informed the parties that I would deal at the fixed hearing date with any applications that were maintained. The Secretary of State filed a short skeleton argument on 6 November 2017. At the hearing on 7 November 2017 both parties wished the substantive hearing to proceed, as it did.
As to whether the Secretary of State ought in these circumstances to be permitted to participate and rely on her late grounds and evidence, the claimant (through her counsel Ms Haji) invited my attention to the observations of Laing J in R (Kalah) v SSHD [2017] EWHC 2373 (Admin) at §§8–12 and my own in R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) at §§21–37. Having done so, the claimant did not press objection to the Secretary of State participating at the hearing to assist the Court, or relying on the grounds and evidence. She did however submit that the Court could and should mark disapproval by means of an adjusted approach to any costs order. In the circumstances, I decided it was appropriate to hear from the Secretary of State (through her counsel Ms Thelen), to allow reliance on the grounds of resistance, and to allow both parties to rely on the evidence. I will deal with the question of costs at the end of this judgment. At the substantive hearing I heard full submissions on both sides, including on the approach I should adopt to costs on the various outcomes that could ensue.
The argument on the points of law in this case were not completed at the substantive hearing. That is because various points arose on which the Court needed to be better informed and provided with further material. In circumstances where I was in any event reserving judgment, I gave the parties the opportunity to file further submissions and materials, with an agreed timetable for this. I have considered the written submissions and materials provided.
I return to the background facts. The claimant was born in 1991 in Nigeria to a mother who was a national of Finland. Aged 13, she entered the United Kingdom for the first time in April 2005 on a valid visit visa. In August 2005 she became an overstayer. She made unsuccessful applications for leave to remain in 2012, 2013 and 2016. In May 2016 she was detained for removal subsequently set for 9 June 2016 and then 4 July 2016, but which did not proceed. At that time she filed a claim for judicial review (9 June 2016), permission for which was refused on paper (14 July 2016) and at an oral hearing (27 September 2016).
Meanwhile, on 7 July 2016 the claimant was released on bail by the First Tier Tribunal (FTT) with reporting restrictions. A Home Office notification dated 14 July 2016 (form ICD.1100) records the claimant being notified that she was to attend on 21 July 2016 when there would be a variation from immigration judge's bail to Chief Immigration Officer's bail. Home Office notifications dated 21 July 2016 (forms IS.99 and IS.99A) record the claimant having so attended and having given her recognizance to appear at the Croydon Reporting Centre on 12 January 2017. It is common ground that bail continued until 30 March 2017 when the claimant attended at the Reporting Centre as required.
On 27 February 2017, acting pursuant to Regulation 7 of the Immigration (European Economic Area) Regulations 2016 (the 2016 EEA Regulations) the Secretary of State refused an application made by the claimant on 5 June 2016 for a residence card as confirmation of a right of residence in the United Kingdom as the dependent family member of an EEA national, her Finnish mother. The refusal was on the ground that the Secretary of State was not satisfied that the claimant was genuinely dependent upon her EEA family member. The notice of decision informed the claimant: (a) that she should make arrangements to leave or could be the subject of enforced removal; and (b) she had rights of appeal and to submit a further EEA application if able to demonstrate an EU right of residence. The claimant filed an appeal on 8 March 2017.
The Secretary of State then generated a notice of fresh removal window (form RED.0004) dated 14 March 2017, addressed to the claimant and informing her that her new removal window commenced after 7 days of receipt of the notice (counted as being two working days after posting) and remained in force up to three months, in which time window she could be removed without further notice.
When the claimant attended the immigration reporting centre in Croydon on 30 March 2017, in accordance with the terms of her bail, she was served with a letter dated 21 March 2017, notifying her of removal directions for 22:30 on 30 March 2017. She was detained, and served with a notice of immigration detention (form IS91R).
The claimants' solicitors sent a letter before claim immediately on 30 March 2017. An interim order was obtained by them from this Court, staying removal in proposed judicial review proceedings to challenge the proposed removal. This order is dated and stamped 31 March 2017, but it was described in the papers as granted on 30 March 2017 and I was told it was served on the Secretary of State around 8pm. It was effective to stop the removal.
The claimant's solicitors followed up with a human rights claim on 31 March 2017. On 3 April 2017 this judicial review claim was formally commenced, with a claim form and judicial review grounds. On the same day, a further EEA residence card application was made, as was a request for release on temporary admission. On 12 April 2017, the claimant's solicitors made a bail application, which the FTT granted on 2 May 2017. Meanwhile, the Secretary of State had reviewed the immigration detention (31 March 2017, 6 April 2017, 12 April 2017); she had rejected the human rights claim, written a judicial review pre-action response and refused release (10 April 2017); and she had produced a bail summary (28 April 2017).
Following the claimant's release on bail, this judicial review claim was maintained, as a challenge to the legality of the 33 days of immigration detention. That is the claim for which permission for judicial review was granted. Many arguments were raised but there are essentially five reasons which have been advanced by the claimant, as to why the immigration detention in this case was unlawful, whether for the whole or part of the period of 33 days. I turn to deal with those five essential points.
THE SUSPENSIVE APPEAL POINT
The first reason relied on by the claimant is that the appeal against the refusal of an EEA residence card, filed on 8 March 2017, was in law a suspensive in-country appeal, which barred removal action. If removal action was barred, Hardial Singh 3 was breached by the detention.
I cannot accept the claimant's argument. Regulation 36 of the 2016 EEA Regulations provides for the relevant appeal rights. Regulation 37 identifies which appeals can only be pursued out of country, and does not include an appeal against an EEA decision to refuse a residence permit. Regulation 40(2) and (3) identify the situations in which directions for removal are to have no effect while an appeal is pending. Regulation 33(1)(a) and (2) identifies a...
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