R or v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms. D. Gill |
| Judgment Date | 10 December 2013 |
| Neutral Citation | [2013] EWHC 3867 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 December 2013 |
| Docket Number | Case No: CO/2358/2011 |
[2013] EWHC 3867 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms. D. Gill
Sitting as a Deputy High Court Judge
Case No: CO/2358/2011
Ms Sonali Naik (instructed by Lawrence Lupin Solicitors) for the Claimant
Mr David Blundell (instructed by The Treasury Solicitor) for the Defendant
The issues
The claimant, a national of Iraq, was convicted in August 2005 of two counts of detaining a child without lawful authority and sentenced in September 2005 to 2 years 4 months imprisonment in a Young Offenders' institution. On 8 May 2006, he was released on licence but his detention was continued under immigration powers. On 5 March 2009, he applied for bail. On 16 March 2009, his application for accommodation under section 4 of the Immigration and Asylum Act 1999 ("the 1999 Act") was accepted and a bail address provided. He was granted bail on 26 March 2009.
Fourteen months later, on 18 May 2010, the claimant was re-detained under immigration powers. Between 12 July 2010 (or thereabouts) and 25 March 2011, he and his representatives made five applications for s.4 accommodation. It was not until 10 November 2011 that the defendant offered him accommodation. This was after a hearing had taken place (on 20 October 2011) before Irwin J when directions were issued for the defendant to serve a witness statement detailing the steps by then taken to obtain a s.4 address, the steps that would then be taken to obtain a s.4 address and, if possible, a decision as to whether and if so when the claimant would be removed. As a consequence, on 4 November 2011, the defendant lodged a witness statement from Ms. Linda Hopkins, Assistant Director on the NAM+ Routing, London and South East Initial Accommodation and Section 4 Bail Team providing that part of the information which is set out at para 11 below in italics. On 9 November 2011, the claimant applied for bail to the First-tier Tribunal (Immigration and Asylum Chamber) (FtT). On 15 November 2011, bail was granted by a judge of the FtT.
On 7 February 2012, Mr. John Bowers QC sitting as Deputy High Court Judge granted the claimant permission on the following issues:
i) whether the defendant acted lawfully in her treatment of his applications for s.4 accommodation during his detention from 18 May 2010; the claimant asserts that the defendant acted unreasonably in failing to provide him with a bail address from the date of his first application (on or around 12 July 2010) until the grant of accommodation on 10 November 2011;
ii) if the defendant's treatment of his application for a bail address was unlawful, whether this was a material factor in his continued detention from 18 May 2010.
In addition, Ms. Naik sought permission at the hearing on 30 July 2013 as follows:
i) she sought permission to rely upon Article 5 but limited to the question whether the defendant's treatment of the claimant's application for s.4 accommodation prevented him from seeking a speedy resolution of his release from detention contrary to Article 5(4) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR");
ii) she sought permission to amend the grounds of claim to add the remedy for breach of the claimant's rights under Article 5 of aggravated or exemplary damages.
Having heard the submissions of the parties de bene esse, I have decided to refuse permission on the Article 5(4) issue. It follows that permission to amend the claim to add the remedy of aggravated or exemplary damages is also refused. My reasons are given below.
The reason why Ms. Naik was constrained to seek permission to rely on Article 5 in limited terms is that at the permission hearing on 7 February 2012, Mr. John Bowers QC sitting as a Deputy High Court Judge refused permission on all grounds save for the s.4 argument. The Court of Appeal rejected a subsequent attempt to renew the application for permission in R (SG and OR (Iraq)) v. Secretary of State for the Home Department [2012] EWCA Civ 940, [2013] 1 WLR 41. The claimant is OR (Iraq) in SG and OR (Iraq). This is the leading authority on the granting of injunctions pending the determination of country guidance appeals.
The claimant's case on the s.4 accommodation issue
Amongst the documents disclosed by the defendant to the claimant are notes on a computer file called "GCID — Case Record sheet". "GCID" stands for "General Case Information Database". The entry for 23 December 2010 (A341) states: "… the subject is not suitable for initial accommodation. He should not be housed near schools or parks". On 11 January 2011, the Case Owner handling the claimant's s.4 application said that the claimant " should not be placed near parks and schools". The GCID entry for 6 April 2011 states: " section 4 bail support provided 3 bail addresses. Unfortunately all 3 were withing [sic] 0.5 of a mile from both primary and secondary schools. We would want the accommodation to be no closer then [sic] 3 mile radius from schools."
It is not in dispute that the accommodation that the claimant was eventually offered on 10 November 2011 and to which he was released on bail did not comply with the criterion of being at least three miles away from schools and parks.
The claimant's case on the s.4 accommodation issue is that the defendant acted unreasonably in handling his application for a bail address, in that she exercised her discretion unreasonably in imposing a condition that any accommodation offered to him must not be within three miles of any schools or parks. He asserts that the fact that the discretion was exercised unreasonably is shown by the following:
(a) In March 2009, his application for s.4 accommodation was processed within two weeks and he was offered accommodation that was in fact situated near to both primary and secondary schools and public parks.
(b) When he was offered accommodation in March 2009, he had already been convicted of the offences of the abduction of two 12-year-old girls and thus the criminal convictions could not be a reason for distinguishing the treatment of his application for s.4 accommodation in 2010/2011 from the treatment of his application for s.4 accommodation in 2009.
(c) Having been released from immigration detention in March 2009 to s.4 accommodation, he lived at that address for 14 months. During this 14-month period, he reported as directed and complied with his bail conditions; there were no incidents recorded against him.
(d) The accommodation he was eventually offered in November 2011 did not in fact comply with the three-mile criterion.
(e) His risk of harm to the public was no higher in November 2011 than in March 2009. To the contrary, the documents disclosed by the defendant show that the claimant had in fact been assessed as presenting a medium risk of re-offending with a low risk of harm in March 2009, yet in June 2010, the defendant recorded that he posed a serious risk of harm notwithstanding the fact that there were no criminal convictions or incidents during the period of 14 months between his release in March 2009 and his re-detention in May 2010 and he reported as required.
(f) His risk of re-offending and risk of absconding were no higher in November 2011 than in March 2009.
Ms. Naik's skeleton argument contends (paras 73 and 75) that the defendant cannot point to any additional factors post-dating the release in March 2009 to suggest that the weight to be given to the risk of re-offending and the risk of absconding had changed.
Relevant factual background
In relation to the claimant's detention from May 2006 until March 2009, the chronology of relevant events is as follows:
| 8 May 2006 | Claimant released on licence from his sentence; his detention was continued under immigration powers. |
| 20 Aug 2008 | GCID entry of this date states: "Email rec'd from our Security department. They have been in contact with subjects old probation officer and have been informed that he is a high risk offender with child protection markers." |
| 5 Mar 2009 | Bail application lodged. |
| 16 Mar 2009 | S.4 bail application accepted and bail address provided (Address1). Address held until 29 March 2009. |
| 26 Mar 2009 | Bail granted. |
In relation to the claimant's detention from 18 May 2010 until 15 November 2011, the relevant facts are set out below. The notes in italics are based on para 6 of the statement of Ms. Hopkins. It is appropriate to say at this point that the first sentence of para 6 of the statement incorrectly states that the claimant's first application for a bail address was made on or about 17 August 2010. Mr. Blundell accepted that the first application was made on or about 12 July 2010:
Procedural history
| On or about 12 July 2010: | The claimant applied for s.4 accommodation. This was his first application in relation to the claim which is the subject of these proceedings. It appears that the claimant's first application was misplaced. |
| 20 Sep 2010: | Claimant's application for a bail address re-faxed to the s.4 bail team (see Exhibit LH 1 to the statement of Ms. Hopkins). |
| 1 Oct 2010: | Bail hearing before the FtT (Judge Curzon-Lewis). The bail application was withdrawn (B708–709), the judge saying that the application could not get off the ground if there was no bail address and no surety and that, even if there had been a bail address, he would have been minded to refuse bail in any event, due to lack... |
To continue reading
Request your trial