The Queen (on the application of Andre Babbage) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Soole
Judgment Date09 November 2021
Neutral Citation[2021] EWHC 2995 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/575/2021

[2021] EWHC 2995 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Soole

Case No: CO/575/2021

Between:
The Queen (on the application of Andre Babbage)
Claimant
and
The Secretary of State for the Home Department
Defendant

Phil Haywood (instructed by Deighton Pierce Glynn) for the Claimant

Jonathan Lewis (instructed by Government Legal Department) for the Defendant

Hearing dates: 27, 29 April; 30 July 2021

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Soole Mr Justice Soole
1

The Claimant is a Zimbabwean national, now aged 35. He was detained by the Defendant on 27 February 2020 pursuant to the Immigration Act 1971 and thereafter remained in detention until released on bail in the week in April 2021 when this hearing began. In consequence his claim for release fell away. He seeks declarations that his detention was unlawful by reason of breach of the Hardial Singh principles and/or public law error relating to delay in the provision of accommodation pursuant to s. 4 Immigration and Asylum Act 1999 (‘section 4’); and consequential damages.

2

On the day after the close of argument (30 April), Morris J handed down his judgment in AO v. The Home Office [2021] EWHC 1043 (QB). Having considered its analysis of the Defendant's powers and duties under section 4, the parties agreed that it was necessary to have a further hearing on that aspect of the claim.

The law

3

There is no dispute that the relevant principles for each ground of the claim are summarised in the judgment in AO, which I gratefully adopt:

Hardial Singh

[11] 'The principles to be applied in determining the length of time for which a person may be so detained under the 1971 Act were established by Woolf J in R v Secretary of State for the Home Department, ex parte Hardial Singh [1984] 1 WLR 704. These well-known principles, as stated by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 345 at §22, are as follows:

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose (“ Hardial Singh 1”);

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances (“ Hardial Singh 2”);

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention (“ Hardial Singh 3”);

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal (“ Hardial Singh 4”).”

[12] As regards the question, under Hardial Singh 2 and 3, of how long is a reasonable period, the list of relevant circumstances include: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences. See Lumba §§104 and 105, citing R(I) v SSHD [2002] EWCA Civ 888 at §48.

[13] As regards the risk of re-offending, the magnitude of the risk includes both the likelihood of re-offending and the potential gravity of the consequences. The purpose of the power to deport is to remove a person whose continued presence would not be conducive to the public good. As regards the risk of absconding, the likelihood should not be overstated. It is not “a trump card”: R(I) at §53 cited at Lumba §123.

[15] As regards Hardial Singh 3, the question is whether it is “apparent” that deportation will not be effected within a reasonable time. That does not cover the situation where the prospect of removal is “merely uncertain”. There must be a “sufficient prospect” of removal to warrant continued detention and what is sufficient is a question of balance in each case. There can be a realistic prospect of removal without it being possible to specify or predict the day by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all: R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270 at §§36–38.

Hardial Singh 4

[16] As regards Hardial Singh 4, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. It is necessary to demonstrate unlawfulness going beyond mere administrative failing and to show a specific period during which, but for the failure, he would no longer have been detained: R (Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549 at §12.

Generally

[18] Finally, it is for the court to determine whether the detention has breached the Hardial Singh principles (and not merely for the court to review the Secretary of State's decision on Wednesbury grounds), and to do so on the basis of the material available at the time. However, in so doing, the court may recognise that the Secretary of State is better placed than itself to decide incidental questions of fact and the court will take such account of the Secretary of State's views as may seem proper: R(A) v Secretary of State [2007] EWCA Civ 804 at §62.

[19] As the period of detention gets longer, the greater the degree of certainty and proximity of the removal required to justify detention: R (on the application of MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 at §68(v).

4

The burden is of course on the Defendant to justify the detention, e.g. to show that there was no breach of Hardial Singh principles. As to evidence: ‘Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party…The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision… “to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings”’: R (Das) v SSHD [2013] EWHC 682 (Admin) per Sales J (as he then was) at [21]; and cited with approval on appeal: [2014] EWCA Civ 45; [2014] 1 WLR 3538 per Beatson LJ at [80].

5

Further, even when there comes a time when the detainee should be released, the Defendant is entitled to a ‘grace period’ in order to make any necessary arrangements: R (AC(Algeria)) v SSHD [2020] EWCA Civ 36.

6

Returning to AO:

Public Law Error and Lumba

[20] In Lumba the Supreme Court went on to consider the position where a decision maker fails to follow a published policy or makes any other public law error. The position is as follows:

(1) A decision maker must follow his published policy unless there are good reasons for not doing so: Lumba §26.

(2) Breach of published policy or any other public law error will render detention unlawful only where the breach or error “bears upon” and is “relevant to” the decision to detain. The error must be “capable of affecting” the decision to detain or not to detain”: Lumba §68.

(3) Where detention has been vitiated by a public error, the claimant will be entitled to nominal damages only, if detention could and would have been maintained, in the absence of the public law error: Lumba §71. The court must consider whether, had the public law error not been made, (i) could the Secretary of State have lawfully detained the claimant and (ii) can the Secretary of State demonstrate, on the balance of probabilities, that she would have detained the claimant in any event: Element (i) falls to be determined on Wednesbury principles i.e. could a decision maker reasonably have detained the claimant. Element (ii) is a question to be determined on the facts, on the balance of probabilities. See R (VC) v Secretary of State for the Home Department [2018] 1 WLR 4781 at §62.

7

Section 4

By section 4(2) of the Immigration and Asylum Act 1999:

‘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.

8

In AO the Court was considering the (now repealed) provisions of s.4(1)(c) which concerned the provision of accommodation for persons released on bail from detention under any provision of the Immigration Acts; but it is agreed that Morris J's observations apply equally to s.4(2).

9

Having considered conflicting authority at first instance, he preferred the conclusion that to render the detention unlawful the alleged public law error must bear on the decision to detain by the Secretary of State, not another body, e.g. the FTT: ‘…in the case where bail has been granted in principle, the relevant decision to detain remains that made in the detention review’; and ‘Detention will only be unlawful where it is the decision of the person detaining that is capable of being affected by...

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