The Queen (on the application of Omed Abid) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Helen Mountfield |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] EWHC 1962 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2017 |
| Docket Number | Case No: CO/5842/2015 |
[2017] EWHC 1962 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Mountfield QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/5842/2015
Mr Philip Nathan (instructed by Duncan Lewis) for the Claimant
Mr Rory Dunlop (instructed by the Government Legal Department) for the Defendant
Hearing date: 26 June 2017
Approved Judgment
Helen Mountfield QC:
Introduction
This application for judicial review has a long history. It started life as a claim about high principle: when it started, it appeared to concern the ongoing wrongful detention of the Claimant, ostensibly for immigration purposes, but without any steps at all being taken to progress his removal from the jurisdiction. The matter was listed for an urgent rolled-up hearing on 10 March 2016. But by the time of that hearing, the Claimant had been removed from the jurisdiction (without opposition from him); the Defendant had responded to the Claimant's pre-action letter in terms which appeared to suggest new grounds of challenge; moreover, extensive disclosure shortly before the hearing made, it clear that this was not a case where no steps at all had been taken to effect removal: at least some steps had been taken in relation to removal of which the Claimant had been unaware when the claim was commenced. So the claim was then about whether the steps taken were adequate to meet the requirements of law in the circumstances; about whether the Defendant was liable to pay damages; and costs. The 10 March 2016 hearing had initially been listed as an expedited rolled up hearing, but in the light of late disclosure a full hearing could not take place and it became a permission hearing and application to amend the grounds in the light of disclosure to plead new errors of law in the approach to ongoing detention thereafter.
I granted permission on the Hardial Singh ground concerning the allegation that the Claimant had been wrongly detained without adequate steps being taken towards removal (see paragraph 6 below), and ordered a 'rolled up' hearing on an amended ground concerning failure by the Defendant to follow her policies: a ground which appeared to emerge from the recent disclosure. Having heard a very lengthy permission application, I reserved matters to myself as this seemed an efficient way to deal with the application on the basis that the matter would soon return to court. Unfortunately, the case did not come back to the High Court for another fifteen months. Moreover, by the time the claim eventually came to be heard in June 2017, the issues had moved on again, as a result of further consideration by the Claimant's lawyers of the late disclosure which had been made shortly before the 10 March 2016 hearing.
A new ground was now pleaded on the basis of errors in the way the Claimant had been described in various documents considering whether he ought to be detained, and – it was said on the basis of the further disclosure now made – a different unjustified delay in processing the Claimant's removal from that originally pleaded. It was now said that the Defendant had erred in law by waiting unnecessarily for feedback from the United Nations High Commission for Refugees ("UNHCR") and in delaying on the basis of an erroneous belief – expressed in the Defendant's response to the pre-action protocol letter from the Claimant — that it was they, not the Defendant, who cancelled refugee status.
So the claim was no longer about whether the Claimant had been detained and then forgotten altogether for the whole period of his detention from 18 June 2015 and the issue of the claim on 27 November 2015 (as it had understandably first appeared, and been alleged in the original claim form). It was now about whether there had been a three month period of unlawful detention caused by policy failures and failures to act with adequate expedition for a much shorter period, between July and September 2015; and, if that period of detention was vitiated by errors of law, whether the claim was in any event academic because, as the Defendant claims, the Claimant would inevitably have been detained during that period in any event, as an abscond risk.
This procedural history illustrates that the Secretary of State's failure to get an early grip on proceedings and to give the Government Legal Department sufficient instructions to enable them to make complete and accurate disclosure of all relevant matters in a timely way has made dealing with this case far more complex and costly than it would have been if there had been proper record keeping, and consequently full and accurate disclosure at an earlier date, and a properly informed (and factually accurate) response to the pre-action letter.
The overarching principles
The overarching principle is that, whatever the context in which it occurs, where the state removes a person's liberty, it is for the jailer to justify the legality of doing so: Khawaja v Secretary of State for the Home Department [1984] 1 AC 74. R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1, [1984] 1 WLR 704 sets out the principles as to lawful use of the power to detain someone for immigration purposes, and these have been endorsed by the Supreme Court in Lumba v Secretary of State for the Home Department [2011] UKSC 12, [2012] AC 245. The Hardial Singh principles are that:
i) The Secretary of State can only detain if she intends to deport the person detained, and is using the power to detain for that purpose;
ii) The deportee may only be detained for a period which is reasonable in all the circumstances;
iii) If, before expiry of what would otherwise be such a reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, she should not seek to continue to exercise the power of detention; and
iv) The Secretary of State should act with all diligence and expedition to effect removal.
Lumba also establishes that it is unlawful for a public authority to act inconsistently with a published policy in the absence of convincing reasons for declining to do so.
As to the fourth Hardial Singh principle, this was elaborated by the Court of Appeal in Krasniqi v Secretary of State for the Home Department [2011] EWCA 1549 at [12], where the Court of Appeal held that 'mere' administrative failings are insufficient to found a claim on the basis of the fourth Hardial Singh principle. The Court of Appeal deprecated the idea of judicial micro-management of the efficiency of the removal process, and held that there is "a high hurdle" to cross to establish a failure to act with reasonable diligence and expedition amounts to illegality. It also held that even if the hurdle is crossed, no cause of action is established unless the Claimant can show that the delay was causative of his detention, and that he would have spent less time in detention if the Defendant had acted lawfully. Krasniqi is binding on this court.
The issues in this case
The present case now concerns two allegations:
i) That the Secretary of State acted unlawfully in failing to follow her own published policies as to detention and removal; and
ii) That in the circumstances, there was a breach of the fourth Hardial Singh principle.
The Secretary of State acknowledges that some mistakes were made in the course of detaining the Claimant, and in particular, that it wrongly recorded that he was a detainee who posed a particular danger to the public when this was not in fact supported by the evidence; but she says that this makes no difference because, in proper application of her policies, she would have detained the Claimant in any event; and because there was no lack of diligence and expedition, taking a reasonable view of the situation. In effect, she says that the errors which were made were not relevant to the decision to detain, which would have been made in any event, and so the detention should not be declared unlawful, for the reasons set out by the Supreme Court in Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, that is, because any such declaration would have no practical effect.
The facts
The facts are as follows. The claimant, named Omed Abid in the claim form, is actually someone called Regir Abed Naamat. He is an Iraqi national from the Kurdish Autonomous Zone of Iraq ("the KAZ").
The Claimant arrived in the UK clandestinely, on the back of a lorry, on 21 November 2007, when he was still a minor. He claimed asylum on 8 January 2008, claiming to be from the village of Raas Al-Ein in Syria, and to be a Kurdish rights demonstrator in Syria who would therefore be in danger on return. The Defendant accepted the Claimant's claim to be Syrian, and although she refused his application for asylum on 15 April 2008, she granted him discretionary leave to remain (because he was a minor) until 3 October 2008.
On 16 October 2008, the Claimant submitted an application for further leave to remain in the UK, which was refused on 19 January 2009. However, on appeal, the tribunal accepted the Claimant's claims that he was Syrian; that he had been arrested filming a Kurdish demonstration; and that he would face a well–founded fear of persecution in Syria. In fact, each of those claims was false.
On the basis of the tribunal's findings of fact, however, the Defendant then accepted that the Claimant was a refugee and granted him leave to remain for five years, until 19 March 2014.
On 11 March 2014, the Claimant made an application for Indefinite Leave to Remain ("ILR"). It is quite likely that, but for supervening criminal conduct, the...
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