R Shoaib v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Richard Clayton |
| Judgment Date | 14 February 2018 |
| Neutral Citation | [2018] EWHC 590 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3560/2017 |
| Date | 14 February 2018 |
[2018] EWHC 590 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Richard Clayton QC
(Sitting as a Deputy Judge of the High Court)
CO/3560/2017
APPEARANCES
Mr M Ilahi (instructed by Law Lane Solicitors) appeared on behalf of the Applicant.
Ms H Masood (instructed by the Government Legal Department) appeared on behalf of the Respondent.
THE DEPUTY JUDGE:
In this case, the claimant has a long and poor immigration history which is set out in detailed chronology in the Secretary of State's summary grounds of defence.
The claimant contends that he is in a relationship with an EEA national, a Ms Paula Sorina Ifrim. He applied for leave to remain on the basis of his private life on 25 th October 2016 and gave notice to the Secretary of State of his intention to marry Ms Paula Sorina Ifrim, on 4 th May 2017.
The claimant's application for leave to remain was refused by the Secretary of State on 15 th June 2017 and certified under s.94(1) of the Nationality Immigration and Asylum Act 2002. Notice of that decision was not served on the claimant until 16 th July 2017. The claimant was also invited to attend a marriage interview on 22 nd June 2017 but this did not proceed as his legal representative was unavailable on that date. The Secretary of State issued a notice that the claimant had not complied with the investigation of proposed marriages on 27 th June 2017. The refusal and certification of the claimant's application leave was not served on him until 16 th July 2017.
On 16 th July, the Secretary of State's immigration enforcement officers attended the claimant's residence and he was served with a notice and detained and remained in detention until he was released on bail on 22 nd August 2017. These proceedings concerned his claim that he was unlawfully detained. The judicial review proceedings were issued on 1 st August 2017. The Secretary of State acknowledged service on 17 th July 2017 and permission was granted on ground by Mr Peter Marquand, sitting as a Deputy High Court Judge, on 12 th October 2017.
As the case was developed before me, particularly by Mr Ilahi on behalf the claimant, the case became further refined and a number of issues fell away, in particular questions about the detailed grounds, and issues about what grounds were to be argued out and what important documents were allegedly not served on the claimant. The case, as it was finally developed by Mr Ilahi, was essentially that the detention was unlawful because of a failure to serve the reasons for the detention in IS91R, a particular notice that should be served.
The legal framework
The obligation to serve this particular form is contained in the enforcement instructions and guidance issued by the Secretary of State. The relevant passage for these purposes is to be found at part 55.6.3, form IS91R, Reasons for Detention, which states:
“This form is in three parts and must be served on every detained person including each child at the time of their initial detention. It must be completed in three sections. In addition, it must be a properly evidenced and a properly justified explanation for the reasoning behind the decision placed on the file.”
The relevant passage sets out five possible grounds for detention and lists 13 factors which should be taken into account and formed the basis for the reasons to detain. A failure to give that notice is effectively common ground between the parties, albeit for slightly different reasons. The Secretary of State drew my attention to Regina (Kambadzi) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) 2011 WLR 1299, which, amongst other things, concerned a failure to carry out regular reviews of an immigrant in detention in accordance with the Detention Centre Rules and where the policy in question was set out in the Home Office's operational enforcement manual.
In that case, the Supreme Court held that:
“The Secretary of State was under a public law duty to give effect to a published policy which was sufficiently closely related to the authority to detain so that it provided a further qualification to the statutory ground that continued and indefinite detention was not authorised by an initial decision to detain. The published policy was fundamental to the propriety of continued detention in that it narrowed the power to detain by requiring regular reviews to determine where there was still good grounds for continuing to detain. Even though reviews were not required by the statute, they went hand in hand with the exercise of the statutory authority to detain and it was an abuse of power for the detention to continue indefinitely without this being reviewed. A failure to adhere to the published policy without good reason was an error which bore on and was relevant to the decision to detain the claimant throughout the period when the review should have been carried out and that it was an abuse of power which rendered the detention itself unlawful.”
The Secretary of State also drew attention to two further cases which directly considered the form that I am considering today. The first is R (on the application of) Faulkner, v Secretary of State for the Home Department [2005] EWHC 2567 (Admin) where Bean J, as he then was, discusses the position and states:
“11. Since there is no presumption in favour of detention, it follows in my view that there is a duty to inform a detainee of the grounds of his continued detention. The basic proposition is not in doubt: as Sedley LJ put it in Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 315 at paragraph 58: ‘If the State is taking away your liberty, you are entitled to know why’.”
Bean J also relies on the very well-known case of Christie v Leachinsky [1947] AC 573, a decision of the House of Lords, a false imprisonment claim, which of course held that reasons should be given on when someone is arrested or detained. Counsel also drew attention to a decision of Nicol J in Mahajna (Salah) v Secretary of State for the Home Department [2011] EWHC 2481 (Admin), which is to much same effect, where Nicol J said it dealt with the problem that the detainee had been told about the reasons for his deportation in English and not Arabic and basically expressed the view. following Bean J. that:
“59. […] He did not know therefore that the reason why he was being detained was that the Secretary of State considered he presented a risk of absconding to avoid deportation or a risk to the public or both. That was a critical omission.”
On the other hand, Mr Ilahi preferred to put his case on a slightly broader basis, referring to the celebrated dictum of Lord Steyn in R (Anufrijeva) v Home Secretary (HL(E)) 621 referred to:
“28. This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on the doors in the early hours. That is not our system.”
The upshot of the submissions made by both parties is that the service of the reasons for a detention documentation is critical to the lawfulness or otherwise of the claimant's detention.
Factual background
Having emphasised that this is a critical issue for the court to determine it is important to emphasise that in judicial review proceedings the burden is on the claimant to prove unlawfulness and where facts are in dispute that they do so on the balance of probability.
The claimant's fundamental difficulty was that the contemporaneous documents showed that the claimant had been served with form IS91R. However, Mr Ilahi tried to overcome this by drawing attention to the evidence of handwritten entries of Katie Manshull, in the contemporaneous records at 11.29 which showed its service, and arguing that the evidence was unreliable. He also referred to inconsistent entries in relation to matters recorded at 11.40 between the handwritten and the typewritten notes. However, I must remind myself that that the important question is whether the claimant satisfied the burden of proof incumbent upon him to demonstrate unlawfulness and unreliability or language to that effect is just insufficient to overcome the burden that he is obliged to meet. It is plain from the evidence that the claimant was in fact served with form IS91R, and in those circumstances, I hold that I am not satisfied that the Secretary of State failed to serve reasons on detention and I therefore dismiss this claim.
Thank you.
MS MASOOD: My Lord, the only remaining issue is the enforcement on this decision.
THE DEPUTY JUDGE: Well, I asked him in...
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Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?
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