R (on the application of AT (Guinea)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Nigel Poole |
| Judgment Date | 22 October 2019 |
| Neutral Citation | [2019] EWHC 2709 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4858/2018 |
| Date | 22 October 2019 |
[2019] EWHC 2709 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nigel Poole QC
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/4858/2018
Mr Ranjiv Khubber (instructed by Turpin & Miller LLP) for the Claimant
Mr Zane Malik (instructed by Government Legal Department) for the First Defendant
The Second Defendant being unrepresented
Hearing dates: 17 & 18 September 2019
Approved Judgment
Nigel Poole QC:
INTRODUCTION
This is an application for judicial review. The Claimant is AT (“the Claimant”). He is anonymised within this judgment because I shall refer to confidential medical matters concerning his mental health. He brings a number of challenges against the Secretary of State for the Home Department (“Secretary of State”) and against the First-tier Tribunal (Social Entitlement Chamber, Asylum Support) in relation to his immigration detention. Specifically, he challenges:
i) His detention under the Immigration Act 1971 by the Secretary of State from between 29 March 2018 and 22 March 2019.
ii) The Secretary of State's failure fairly and rationally during the relevant period, to process his applications for accommodation and asylum support under ss.4 and 95 of the Immigration and Asylum Act 1999, and Schedule 10 of the Immigration Act 2016.
iii) The failure of the Secretary of State to make a decision on his application for Schedule 10 accommodation after the request was made on 1 November 2018.
iv) The decision of the First-tier Tribunal to dismiss his appeal against the Secretary of State's refusal for s.95 support.
The claim was brought on 5 December 2018 whilst the Claimant was still in immigration detention. Mrs Justice Cheema-Grubb expedited the claim by abridging time for acknowledgement of service but did not grant interim relief. On 15 January 2019 John Howell QC sitting as a Deputy High Court Judge gave permission for judicial review on ground 1 (unlawful detention) but refused permission on the other grounds and ordered that the hearing be expedited. The Claimant was released from detention on 22 March 2019 and so the need for expedition fell away. I have to consider the claim on ground 1 and the renewed applications for permission in relation to grounds 2 to 4 and, if permission is given, whether judicial review should be granted on any of those grounds. If the Claimant succeeds such that damages should be assessed, then directions to allow for agreement of damages or the court's assessment will be required.
The Claimant was kept in immigration detention following a deportation order made after his conviction and imprisonment for an offence of robbery, the last of a series of criminal offences he had committed over a period of several years. He was transferred into immigration detention upon the conclusion of the custodial sentence. As discussed below, having appealed his deportation the Claimant found himself in the unusual position of being in immigration detention whilst at the same time retaining indefinite leave to remain. There was some confusion as to the statutory mechanism by which he might be eligible for accommodation support in the event of his release from detention. He was granted bail in principle by the First-tier Tribunal on three occasions, subject each time to a condition that suitable accommodation was made available. On each occasion no accommodation was forthcoming and so bail was then refused. The legislation is complex and was not clearly understood by all those involved in his case. The overall period of detention was nearly 12 months.
Nevertheless, for the reasons given in this judgment, I am satisfied that his detention was at all relevant times lawful and that permission has been rightly refused for the other grounds of challenge.
LEGISLATION
In order to make sense of the history of events and decisions in this case, it is necessary first to consider the applicable legislation. There are a large number of relevant provisions.
Immigration Act 1971 (“the 1971 Act”)
Schedule 3
2 (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph ( 1) or (2) above when the order is made, shall continue to be detained unless he is released on immigration bail under Schedule 10 to the Immigration Act 2016.
Immigration and Asylum Act 1999 (“the 1999 Act”)
s.4 Accommodation
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected. …
s.94 Interpretation of Part VI.
(1) In this Part—
…
“asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;
“claim for asylum” means a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom;
….
s. 95 Persons for whom support may be provided.
(1) The Secretary of State may provide, or arrange for the provision of, support for—
(a) asylum-seekers, or
(b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.
(3) For the purposes of this section, a person is destitute if—
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.
…
s. 115 Exclusion from Benefits
(1) No person is entitled to universal credit under Part 1 of the Welfare Reform Act 2012 or to income-based jobseeker's allowance under the Jobseekers Act 1995 or to state pension credit under the State Pension Credit Act 2002 or to income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance) or to personal independence payment or to—
…
(e) income support,
…
(i) child benefit,
…. while he is a person to whom this section applies.
…
(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.
…
(9) “A person subject to immigration control” means a person who is not a national of an EEA State and who—
(a) requires leave to enter or remain in the United Kingdom but does not have it;
(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
….
Nationality, Immigration and Asylum Act 2002 (“the 2000 Act”)
s.82 Right of appeal to the Tribunal
(1) A person (“P”) may appeal to the Tribunal where –
…
(c) the Secretary of State has decided to revoke P's protection status
…
s.78 No removal while appeal pending
(1) While a person's appeal under section 82(1) is pending he may not be –
(a) removed for the United Kingdom in accordance with a provision of the Immigration Acts
…
(3) Nothing in this section shall prevent any of the following while an appeal is pending –
…
(a) the giving of a direction for the appelant's removal from the United Kingdom …
(c) the taking of any other interim or preparatory action …….
…
s. 79 Deportation order: appeal
…
(3) This section does not apply to a deportation order that is made in accordance with section 32(5) of the UK Borders Act 2007.
(4) But a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies.
Immigration Act 2016 (“the 2016 Act”)
Schedule 10 – Immigration Bail
Part 1
1(3) The First-tier Tribunal may, on an application made to the Tribunal for the grant of bail to a person, grant that person bail if—
(a) the person is being detained under paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971,
(b) the person is being detained under paragraph 2(1), ( 2) or (3) of Schedule 3 to that Act,
…
Conditions of immigration bail
2(1) Subject to sub-paragraph (2), if immigration bail is granted to a person, it must be granted subject to one or more of the following conditions—
…
(c) a condition about the person's residence; …
Powers of Secretary of State to enable person to meet bail conditions
9(1) Sub-paragraph (2) applies where—
(a) a person is on immigration bail subject to a condition requiring the person to reside at an address specified in the condition, and
(b) the person would not be able to support himself or herself at the address unless the power in sub-paragraph (2) were exercised.
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of that person at that address.
(3) But the power in sub-paragraph (2) applies only to the extent that the Secretary of State thinks that there are exceptional circumstances which justify the exercise of the power.
The Asylum Support Regulations 2000
Persons excluded from support
4.—(1) The following circumstances are prescribed for the purposes of subsection (2) of section 95 of the Act as circumstances...
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