Upper Tribunal (Immigration and asylum chamber), 2024-03-12, JR-2023-LON-001472
| Appeal Number | JR-2023-LON-001472 |
| Hearing Date | 13 November 2023 |
| Date | 12 March 2024 |
| Published date | 19 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Justice Dove
Approved by the President of the Upper Tribunal 12 March 2024
IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW
BETWEEN :
THE KING
on the application of
MARK NELSON
Applicant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
__________________________________________________________
ORDER
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BEFORE the President and the Vice President of the Upper Tribunal (Immigration and Asylum Chamber) on 10 and 13 November 2023
UPON considering the Applicant’s application for judicial review and the documents lodged by both parties therein
AND UPON the Respondent conceding that the reviews of the Applicant’s electronic monitoring condition dated 10 October 2022 and 21 April 2023 were unlawful
AND UPON the Respondent confirming on 7 August 2023 that he had not accessed the Applicant’s data obtained from the Applicant’s GPS tag for use in the Applicant’s article 8 claim and the Applicant withdrawing ground 3 as a consequence on 7 September 2023
AND UPON the order of Mrs Justice Hill dated 30 June 2023 and the order of Mr Justice Dove dated 13 September 2023 awarding the Applicant his costs of the applications identified therein
AND UPON the Respondent agreeing to pay the Applicant’s costs of and incidental to:
(i) the Applicant’s application to adjourn made on 14 September 2023, and (ii) the directions hearing of 19 September 2023
AND UPON the parties agreeing that the question as to whether the Respondent pay the Applicant’s costs on the indemnity basis or standard basis in relation to: (i) the Applicant’s application to adjourn made on 14 September 2023, and (ii) the directions hearing of 19 September 2023 is to be considered by the Tribunal when considering the question of costs in the claim.
AND UPON hearing from Sarah Hannett KC and Donnchadh Greene for the Applicant and Zane Malik KC for the Respondent
AND UPON the handing down of judgment on 11 March 2024
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The Respondent’s decision to impose an electronic monitoring condition, with effect from 17 May 2022, by way of Global Positioning Satellite tag on the Applicant as a condition of immigration bail under Schedule 10 Immigration Act 2016 breached Article 8 of the European Convention on Human Rights during these periods:
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between 29 June 2022 and 17 July 2023 and between 4 November 2023 and 21 December 2023 as it was not in accordance with the law for the purposes of Article 8(2); and,
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between 23 November 2022 and 11 May 2023 as it was a disproportionate interference with his Article 8 rights for the purposes of Article 8(2).
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The Respondent’s reviews of the Applicant’s electronic monitoring condition dated 10 October 2022 and 21 April 2023 are unlawful.
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The Applicant’s application for judicial review on ground 1 is allowed to the extent identified in the Judgment and is otherwise dismissed.
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The Applicant’s application for judicial review on ground 2 is allowed.
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The Applicant’s application for judicial review is dismissed on ground 4.
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Save for where the Upper Tribunal (Immigration and Asylum Chamber) has already made a determination as to costs, the issue of costs is to be dealt with by way of written submissions as follows:
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The Applicant shall file and serve his written submissions by 4pm on 15 March 2024.
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The Respondent shall file and serve his written submissions by 4pm on 21 March 2024.
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The Applicant shall file and serve any reply by 4pm on 26 March 2024.
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There shall be a detailed assessment of the Applicant’s publicly funded costs in accordance with the Civil Legal Aid (Costs) Regulations 2013
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Any application for permission to appeal is to be dealt with by way of written submissions as follows:
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Any party seeking to make an application for permission to appeal shall file and serve any written submissions by 4pm on 15 March 2024.
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Any party seeking to respond to any application for permission to appeal may file and serve and written submissions in response by 21 March 2024.
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[If permission to appeal is refused] The time for the Claimant to seek permission to appeal from the Court of Appeal is extended to 21 days after the date on which he is granted legal aid to apply for permission to appeal.
Upper Tribunal
(Immigration and Asylum Chamber)
In the matter of a claim for Judicial Review Case Number: JR-2023-001472
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 10th & 13th November 2023 |
|
|
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11th March 2024 |
Before
THE HON. MR JUSTICE DOVE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
THE KING
on the application of
mark nelson
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Applicant: Sarah Hannett KC and Donnchadh Greene instructed by Wilson Solicitors LLP
For the Respondent: Zane Malik KC instructed by Government Legal Department
Introduction
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The applicant brings this claim for judicial review in relation to the ongoing decision of the respondent to make him subject to a condition of electronic monitoring imposed by the wearing of a global positioning satellite (“GPS”) tag.
The factual background
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The applicant is a national of Jamaica and was born on 30th January 1979. He arrived in the United Kingdom on 10th September 2000 and was ultimately granted indefinite leave to remain in the United Kingdom on 23rd October 2007. On 8th May 2017 the applicant was sentenced to a total of 48 months imprisonment as a result of his conviction for possession with intent to supply a class B drug, abstracting electricity and two offences of racially aggravated intentional harassment.
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The respondent took action to deport the applicant including the making of a deportation order on 13th July 2018. The applicant responded to this deportation order by making human rights representations on 19th December 2018. This human rights claim was refused by the respondent without a right of appeal, in error, on 8th February 2019. The applicant made further representations on 21st March 2019, which were also refused without a right of appeal in error on 17th May 2019. These decisions were subsequently withdrawn and the applicant’s human rights claim was refused with a right of appeal on 31st May 2019, a decision which the applicant appealed to the First-tier Tribunal (“FtT”). The applicant was entitled to be released from prison on 8th May 2019 but he continued to be detained under immigration powers. On 19th August 2019 the applicant was granted immigration bail by the FtT subject to conditions including weekly reporting, a residence condition, a prohibition on work and study and a requirement that he attend his probation meetings as he was still on licence.
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On 2nd November 2021 the FtT heard the applicant’s appeal against the refusal of his human rights claim and by a decision of the 17th November 2021 the applicants appeal was dismissed. On 1st December 2021 the applicant applied for permission to appeal the FtT decision. The FtT refused his application for permission to appeal and so on 15th March 2022 the applicant applied to the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) for permission to appeal. Notwithstanding this outstanding appeal, the applicant was detained under immigration powers on 5th May 2022. The following day he was served with removal directions which had to be cancelled on 13th May 2022 owing to the appeal to the UT remaining outstanding. On the same day the FtT granted the applicant immigration bail subject again to a number of conditions on this occasion including electronic monitoring. The condition was imposed pursuant to paragraph 2(3)(e) of Schedule 10 of the Immigration Act 2016 (see below). By virtue of the order of the FtT Judge dated 13th May 2022 “future management including any application for variation shall be exercised by the Secretary of State pursuant to paragraph 6(3) of Schedule 10 to the Immigration Act 2016”.
On 17th May 2022 the applicant was fitted with a GPS tag and released from detention. Coincidentally on the same date the UT granted the applicant permission to appeal the decision of the FtT. On 29th June 2022 the applicant’s solicitors wrote a pre-action protocol letter to the respondent challenging the decision to impose the electronic monitoring condition on the applicant and complaining amongst other matters that to do so breached the applicants Article 8 rights. On the same date the applicant’s solicitors emailed the respondent reporting that the applicant’s tag was too tight and requesting that it be loosened as it was causing...
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