YG, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1735 (Admin)

[2008] EWHC 1735 (Admin)Case No CO/4700/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 8 July 2008
Strand
London WC2A 2LL
B e f o r e:
JAMES GOUDIE QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF YGClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Buley (instructed by Duncan Lewis) appeared for ClaimantMr B Collins (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]DEPUTY JUDGE: The claimant, who was born on 10 November 1985, has been detained under immigration powers in Schedule 2 to the Immigration Act 1971 ("the 1971 Act") for about 16 months since 23 February 2007. Has a reasonable period for such detention now been reached or exceeded so that his challenge by habeas corpus and judicial review should succeed and his immediate release be ordered? That is the principal question before me. I am dealing only with the lawfulness of his present detention. Past detention and any issues as to quantum are to be dealt with on another occasion.[2]The claimant was apparently born in Cambodia, but appears to have left that country aged 5 (or thereabouts). He is of Chinese ethnicity. Neither Cambodia nor any other country has been prepared to accept him as their national.[3]In March 2006, he was sentenced to 30 months' imprisonment for wounding with intent to cause grievous bodily harm. He had poured boiling water over his victim and stabbed his victim four times with a knife. 23 February 2007 was when his prison sentence came to an end. The sentencing court had recommended deportation. He was not served with notice of intention to deport until 21 February 2007. He did not appeal that notice. He has since on a number of occasions applied to the Immigration Appeal Tribunal for bail, but been refused. Whilst serving his sentence of imprisonment, he was subject to adjudications for threatening behaviour.[4]The claimant had entered the United Kingdom concealed in a freight container on 15 April 2000, when he was aged 15. He was arrested at the docks, and tried to avoid detention and arrest when challenged. He claimed asylum as a Chinese national under the name YG. The claim was refused. Thereafter, despite filing an appeal, the claimant did not fully comply with reporting conditions, and he did not attend his appeal hearing. He was eventually treated as an absconder. He claims to have gone to Spain.[5]In May 2004, the claimant was arrested for fare evasion and identified as an illegal entrant for the second time. He claimed asylum as a Cambodian under the name GH on that occasion. Again, his claim was refused. An appeal against that refusal was dismissed in September 2005. In November 2005, he was charged with the offence for which he was imprisoned.[6]Meanwhile in 2004 an attempt had been made to return him to Cambodia. However, Cambodia refused to accept him. They restated that position twice in 2007, on 13 March and 13 June. The pursuit of matters with Cambodia was by the defendant in 2004 and in March 2007, and by the claimant's solicitors in June 2007. Matters have not actually been pursued with the Cambodian authorities since, and it is not known when they will be. There is reference to a meeting being held, but it has not yet been arranged. The claimant, in June 2007, submitted a statelessness application. There has not yet been any response to that.[7]Put shortly, a deportee may be detained only at longest for a period that is reasonable in all the circumstances. All the circumstances of the particular case must be considered. There is no one factor that trumps all others. The circumstances include, amongst other matters, the risk of harm to the public in the case of someone convicted of violent crime, and the risk of absconding in the case of someone who has breached Immigration Rules and has no apparent family ties. The circumstances will also include any lack of information provided to the Secretary of State, and the degree of prospect of eventual deportation.[8]As regards the risk of absconding, I have before me a reporting chronology, indicating the various occasions before his arrest when the claimant did report as required, and the fewer occasions when he did not do so or may not have done so.[9]Paragraph 2(2) in Schedule 3 to the 1971 Act provides:
"Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order [that is, may be detained on the Secretary of State's authority until the making of the deportation order]."
There are others provisions in paragraph 2 in relation to detention or control in a deportation context.[10]In the R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704, Woolf J (as he then was) held that the power of detention given by paragraph 2 of Schedule 3 to the 1971 Act is limited to such period of time as is reasonably necessary to carry out the process of deportation, that the Secretary of State is under a duty to act promptly in carrying out the process of deportation, and that he should not exercise the power of detention unless the person subject to a deportation order could be deported within a reasonable time.[11]In R(I) v Secretary of State for the Home Department [2003] INLR 196, Dyson LJ identified four principles at paragraph 46 as follows:
"i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii. The deportee may only be detained for a period that is reasonable in all the circumstances; 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 that reasonable period, he should not seek to exercise the power of detention; iv. The Secretary of State should act with the reasonable diligence and expedition to effect removal."
[12]Dyson LJ continued at paragraphs 47 and 48 as follows:
"47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a 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."
[13]In R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804, the Court of Appeal gave further guidance on the core principles in cases concerning detention pending deportation. Toulson LJ stated these principles as follows at paragraphs 43 to 45:
"43. There is no dispute that the word 'pending' in schedule 3, paragraph 2 (2) ('…pending the making of the deportation order') and paragraph 2(3) ('…pending his removal or departure from the United Kingdom') simply means 'until'. (Compare Khadir.) However, the Home Secretary's exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case. 44. Those principles were first established by Woolf J in his judgment in Hardial Singh (at 706), which has been cited with approval in subsequent cases including Tan Te Lam and I. After stating those principles, Woolf J continued: 'What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.' 45. In some later judgments that sentence has been treated as a third principle. It seems to me that it is really a facet or consequence of the first and second. Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."
[14]Toulson LJ further said at paragraphs 54 and 55."54. I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making.55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure." Longmore LJ agreed with Toulson LJ.[15]Keene LJ said at paragraph 75, after referring to Article 5 of the European Convention of Human Rights:
" ... Of course, the court will in most cases attach considerable weight to any assessment emanating from a government department about the progress of negotiations with foreign governments or with airlines about securing the return of deportees. But the ultimate decision is, in my judgment, for the court. I therefore would reject the Secretary of State's submission as to the limited role of the court in cases such as this."
[16]Keene LJ said at paragraph 77:
"It is conceded on A's behalf that, in deciding whether the period in question was reasonable, one is entitled to have regard to the risk of the detainee absconding if released and also to any risk to public safety which would then result, though Mr Drabble submits that the latter can only carry limited weight, since the purpose of detention under Schedule 3, paragraph 2(3) is not a public safety purpose. I accept that the underlying purpose of the statutory power is not, first and foremost, the prevention of criminal offences which may be committed by such a person if released: the principal purpose is undoubtedly the facilitation of implementing the deportation order. To my mind, that makes the risk of absconding in any given case a matter of the greatest importance, since if the person in question were to abscond and it were to prove difficult to trace him, the whole purpose of the deportation order would be frustrated. To that extent I respectfully disagree with that part of the judgment of Dyson LJ in R(I) at paragraph 53, where he stressed the need not to overstate the importance of the risk of absconding. It is, in my judgment, a factor which in most cases will be of great importance."
[17]Recently in R(Mamki) v the Secretary of State for the Home Department [2008] EWCA Civ 307, Dyson LJ (with Waller LJ's agreement) restated the position as follows at paragraph 9:
"The principles ... have been stated most fully in two decisions of this court, namely R(I) ... and R(A) ... The statutory power to detain a prospective deportee until his removal or departure is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists, namely the purpose of deportation. Secondly, it may be exercised only for a period that is reasonable in all the circumstances."
[18]At paragraphs 14 and 37, Dyson LJ said:
"14. Thus, the combination of a risk of absconding and a risk of re-offending may justify allowing the Secretary of State, in the words of Simon Brown LJ in R(I) at para 29, 'a substantially longer period of time within which to arrange the detainee's removal abroad'. The greater the risks, the longer the period for which detention may be reasonable. ... 37. The position, therefore, is that there is a substantial risk that, if he were released, the appellant would both abscond and re-offend. The combination of these two risks is that a longer period of detention can be justified as being reasonable than would otherwise be the case. But the detention in this case has already been substantial (some 15 and a half months). There is no immediate prospect that the deportation will take place. However grave the risk of absconding and re-offending, there must come a time when it can no longer be said that the detention is reasonable. The decision as to what is reasonable in all the circumstances calls for a difficult exercise of judgment as to which opinions may legitimately differ. Leaving aside the effect, if any, of the appellant's mental illness, I have come to the conclusion, with some hesitation, that the risks of absconding and re-offending are so great that it is reasonable for the detention to continue for the time being ..."
[19]Mr Austin Greenwood has made a witness statement on behalf of the Secretary of State dated 25 June 2008. It sets out the claimant's immigration history, his criminal offence and his immigration detention. It refers to attempts to get a travel document for the claimant. The current position is stated as being that enquiries and attempts are still under way to obtain a travel document for the claimant so that he can be removed to Cambodia. It is said that progress is being made, and that the Foreign and Commonwealth Office will be approaching the Cambodian authorities. Mr Greenwood observes that the document process in a case where there is no supporting evidence does take some time. The lengthy detention is claimed to be justified by the serious nature of the claimant's offence and the risk to the public if he is released, and the risk of absconding. As to the risk of absconding, the Secretary of State relies upon the immigration history, and in particular the fact that the claimant has travelled illegally to a number of countries. He has twice entered the UK clandestinely, attempting to evade apprehension on one occasion. He has admitted to using false documents. He has brought two different inconsistent asylum claims (one of which was not pursued due to absconding) without success and in different names. On one of these occasions, his solicitors described his nationality as Chinese. He has failed on occasions to comply with reporting conditions. He has given limited and/or inconsistent information to immigration officers. He has no family ties and no incentive to comply with immigration controls. He has every reason to abscond again, and considerable experience of doing so.[20]As to the risk of re-offending, the claimant was convicted of a serious premeditated attack on a neighbour, which was apparently provoked (if provoked at all) by no more than a neighbour dispute.[21]As to failure to return voluntarily, the Secretary of State's position is that the claimant has provided little information to the immigration authorities so as to allow travel documentation to be procured, but this is not, in my judgment, a case where it can be said that the claimant is guilty of a failure to return voluntarily, and that was not a point that was pressed strongly in oral submissions on the Secretary of State's behalf.[22]The Secretary of State argues, however, that considerable efforts have been made to procure the claimant's removal, in circumstances where the limited information provided has made the process a difficult one. The defendant has arranged for nationality/status interviews with the claimant; interviews with the Cambodian Embassy; enquiries with Special Ops; investigation of the claimant's suitability for removal to China as part of Operation Elucidate; and enquiries with the Foreign and Commonwealth Office.[23]The Secretary of State accepts that the process has been lengthy, but contends that it is not of unreasonable length given the difficulties. The passages in Mr Greenwood's witness statement, especially relied upon in this respect, are as follows:
"25. On 26 February 2007 a nationality/status interview was conducted with the claimant through a Cantonese interpreter ... the claimant said that he was ethnic Chinese but he and his parents were brought up in Cambodia. He claimed he had no status in Cambodia or China. It also recorded that the claimant speaks both Cambodian and Cantonese. 26. On 3 March 2007 the claimant was inducted at Colnbrook Immigration Detention Centre. He stated that he did not mind where caseworkers want to deport him (Spain, Cambodia or China), he just would like it to be as soon as possible. 27. On 13 March 2007 the claimant had a telephone interview with the Royal Cambodian Embassy. The CID extract which is attached ... records that the claimant could not speak even one or two words in Cambodian or give any place names. The Cambodian Embassy was 'of the opinion that the subject is not Cambodian'. 28. On 17 March 2007 the claimant was interviewed by an immigration officer regarding his movements prior to arrival in the UK, his family history and knowledge of Cambodia. ... 34. On 8 May 2007 enquiries were made with Special Ops to see if the Cambodian Embassy could be approached for a travel document. In relation to trying to obtain a travel document for the claimant it was noted that (1) the Cambodian authorities had not accepted him when he was removed to Cambodia in 2004 on an EU letter; and (2) the claimant had not provided detailed information which would enable a biodata form to be completed and submitted in the usual way. Accordingly, it was decided to involve the Special Ops team who specialise in securing documents in problematic cases. Special Ops are a team within the Home Office. 35. On 23 July 2007 the claimant's detention was reviewed and a decision taken to maintain detention in light of the fact progress was being made in relation to the attempts to get a travel document. The detention review ... states that 'I sent an e-mail to Mick Fallon on 8 May 2007 requesting to know whether ISDU can approach the Cambodian Embassy in London (preferably through a meeting) where the situation can be explained to them and a formal request made for them to accept him as a Cambodian national. I await his response, however, I have sent an e-mail to Alistair requesting to know what the next step should be'. ... 37. On 4 December 2007 the claimant's detention was reviewed and the decision taken to maintain detention ... The case owner e-mailed Special Ops for an update as to progress on contacting the Cambodian Embassy and arranging a meeting."
[24]I interpose at this point that the detention review that is there referred to states that an e-mail has been sent to Special Ops with a request for a meeting with the Cambodian Embassy "as it does not appear that any action was taken on the earlier request of May this year".[25]Reverting to Mr Greenwood's statement at paragraph 40:
"Between November 2007 and June 2008, the following action has been taken to progress the issue of obtaining an ETD on which the claimant could be deported. a. On 29 November 2007 following internal discussion, it was once again decided to contact Special Ops in relation to getting a travel document. It is not clear from the defendant's internal records whether any contact with Special Ops had been made pursuant to the e-mail in May 2007 referred to above. b. On 4 December 2007 the CCD caseowner contacted Special Ops regarding requesting an approach to the Cambodian authorities. c. On 15 January 2008 the CCD caseowner spoke to Special Ops and was advised that discussions were continuing. d. On 24 January 2008 the position was chased up with Special Ops who informed CCD that they were 'liaising with the Foreign and Commonwealth Office about arranging a visit to the Embassy'. e. On 15 February 2008 an e-mail was sent by the CCD caseowner to Special Ops asking for an update. f. On 6 March 2008 an e-mail was sent by the CCD caseowner to Special Ops asking for an update. A response was sent by Special Ops on 11 March 2008. g. On 16 April 2008 the CCD director reviewing detention requested the caseowner to arrange a further visit to [Mr G] by Ops Team to obtain evidence of nationality. That request was made, chased 5 June 2008. h. On 5 June 2008 Special Ops contacted the CCD caseowner to state that Special Ops were visiting the Cambodian Embassy shortly. i. On 16 June 2008 the CCD caseowner called Special Ops for an update and left a message asking for a response."
[26]The response on 11 March 2008, referred to in paragraph 40f of Mr Greenwood's witness statement, stated:
"I have been in touch with FCO about arranging a visit to the Cambodian Embassy and have contacted RGDU colleagues to see if there is any point in having him interviewed by the Chinese. I have to say that I have concerns about what can realistically be achieved given that he has already been rejected by border officials in Cambodia and the Cambodian Embassy here following a telephone interview, but it is still worth approaching them. I am on leave after today until the beginning of April, but hope that this can be progressed after that."
[27]They were not in fact progressed after that. The detention review dated 12 May 2008 states as regards changes in circumstances:
"I have not heard anything from Helen Ford of Special Ops since her last e-mail in March 2008 in which she stated that she was liaising with the FCO to arrange an interview with the Cambodian authorities, although she did not hold out much hope that she would be accepted as a Cambodian national. When I e-mail her re progress, I received an out of office reply stating that she is not available until 28 April 2008. I have since spoken to Helen Ford from Special Ops. She stated that she had been out of the office frequently, but the negotiations were still ongoing between the FCO and the Cambodian authorities, although she still did not consider that these would be successful. I have also spoken to an IO at Eaton House who confirmed that they would conduct an interview with [Mr G] within the next two weeks."
[28]The document then continues in relation to likelihood of removal within a reasonable timescale by stating:
"Unable to speculate whilst there are doubts concerning nationality."
Nonetheless, as to his prospects of removal, hope is expressed that progress will be made towards obtaining an Emergency Travel Document following a meeting with the Cambodian Embassy in due course. The Secretary of State does not accept that concerns regarding the claimant's mental health require his release.[29]Plainly there are significant factors pointing in both directions. My conclusions are as follows:(1) There is a high risk, but not a very high risk, of serious re-offending.(2) There is a high risk, but not a very high risk, of absconding.(3) It follows that there is a combination of these high and serious risks.(4) The difficulties over deportation cannot to any significant extent, if at all, be attributed to conduct on the part of the claimant since completing his prison sentence. This is not a case in which voluntary repatriation is an option open to him, and I find that he has not obstructed the Secretary of State's endeavours, such as they have been, to deport him.(5) There is no realistic prospect of him being deported to China. The contrary is not suggested.(6) There is no realistic prospect of him being deported to Spain. Again, the contrary is not suggested, and indeed no efforts at all appear to have been made in that particular direction.(7) If there is any realistic prospect of him being deported anywhere, it can only be to Cambodia.(8) The prospect of him being deported to Cambodia is slender.(9) The prospect of him being deported to Cambodia within the near future is even more slender.(10) The pursuit of matters with the Cambodian authorities has, even when it has been occurring at all, been far from energetic. Finality for better or worse should have been achieved by now, notwithstanding the difficulties. Processes can of course take some time, but in the circumstances of this case, should not take beyond the 16 months (or more) that the claimant has already been in immigration detention.(11) A further period of such detention would not be a reasonable period. The risk factors, whilst they must not of course be underestimated, cannot justify indefinite or unduly prolonged detention, especially when actual deportation is ultimately unlikely and when the difficulties over deportation cannot to a significant extent be attributed to the claimant himself.[30]I will therefore hear counsel on the precise form of relief. In broad terms, I would be disposed to grant the Writ of Habeas Corpus and to order the claimant's immediate release.[31]MR BULEY: My Lord, I am very grateful to your Lordship. My Lord, there are a number of consequential matters. Obviously your Lordship has mentioned one. If I just say what I think in broad terms are the matters we need to deal with?[32]DEPUTY JUDGE: Yes.[33]MR BULEY: First of all, my Lord, this is more really by way of information than anything else. I would just like to come back to the point about --[34]DEPUTY JUDGE: There is one point I ought to correct -- you are going to tell me there is another probably -- but when I was referring to the 1971 Act, I got the wrong paragraph, I think. Did I not say 2(2) and should it not have been 2(3)?[35]MR BULEY: No, but let me double check, but I do not think there has been a deportation order ever made.[36]MR COLLINS: That is right.[37]DEPUTY JUDGE: So I was right with 2(2)?[38]MR BULEY: You were right, my Lord, yes. I thought about it as you said it because I had not mentioned the point, but that is the position.[39]DEPUTY JUDGE: Yes.[40]MR BULEY: My Lord, I wanted to return, first of all, very briefly to the point about anonymisation for a reason I will come to in a moment. Secondly, my Lord, obviously the form of the order. In relation to that, I think your Lordship has indicated he would be disposed to grant a Writ of Habeas Corpus and a mandatory order for release, which we say is obviously right. What I think my learned friend will ask you for are various conditions. I think I will let him say what he wants and come back to you, if your Lordship is content with that approach.[41]DEPUTY JUDGE: Yes.[42]MR BULEY: My Lord, thirdly, matters about further progress of the case in terms of declaratory relief we need to cover, but I think we can come back to that in a moment, and finally there will be an application for costs on our part. Whether my learned friend has instructions to raise a fifth issue, I will leave to him.[43]My Lord, can I deal briefly with the anonymisation point? I say this really mainly for the benefit of -- I think there is a court reporter present in court who I think was not here this morning. So I think where we have got to is that your Lordship has accepted -- it is accepted by everyone, I think -- that the name of the case should be anonymised. In terms of your Lordship's judgment, I think that means any reference to my client's name should be replaced by YG. I am not sure there is anything --[44]DEPUTY JUDGE: I am just being handed Sullivan J's order.[45]MR BULEY: Yes, Sullivan J's order as stamped does not mention it, that is the problem, but the minute of order which my learned friend and I agreed and which reflected what we thought Sullivan J had said does mention it.[46]DEPUTY JUDGE: It is also headed R(on the application of YG).[47]MR BULEY: There it is.[48]DEPUTY JUDGE: Anyway, if he has made the order, then that is that, but if he has not, then I make it.[49]MR BULEY: Thank you for that, and I will leave my learned friend to say what he wants to say about conditions, and I will come back, if I may.[50]DEPUTY JUDGE: Yes.[51]MR COLLINS: My Lord, yes, the Secretary of State is concerned that release does not take place without some safeguards being put in place.[52]DEPUTY JUDGE: Quite.[53]MR COLLINS: There are, it seems to me, two possible ways to go about that: the first of which would be for your Lordship to make some orders about, in effect, conditions of bail; the second would be for you to make an order on the basis that the release be on such terms as the Secretary of State sees fit.[54]DEPUTY JUDGE: I am not attracted by the latter.[55]MR COLLINS: My Lord, can I, in that case, commend to you the way that Mitting J dealt with it in A and others. There is a paragraph which, if I can just get your Lordship to read, paragraph 39.[56]DEPUTY JUDGE: Yes, he says there, I see, not Habeas Corpus but mandatory order in judicial review.[57]MR COLLINS: My Lord, yes. That would be my starting point.[58]DEPUTY JUDGE: I do not think anything turns on it.[59]MR COLLINS: I do not want to take up the court's time on that; it is a matter for your Lordship.[60]DEPUTY JUDGE: So the conditions are: 12-hour curfew; tagging; daily reporting to an immigration officer or police station; residence and address to be identified or agreed. Yes.[61]MR COLLINS: He goes on to say that until those conditions are in place, the claimant should not be released, with liberty to apply. The reality is that certainly tagging, and I would imagine also if your Lordship is minded to make an order about an address, those are going to take a few days to set up.[62]DEPUTY JUDGE: Yes.[63]MR COLLINS: It is a matter for your Lordship whether a date is set. That is one possibility. That gives rise to potential difficulties. My experience of past cases, not necessarily this sort of case but similar cases, is that the parties can get into all sorts of difficulties with accommodation, where offers are made and then places in suitable accommodation disappear. The way Mitting J dealt with it was that, until the conditions were in place, the claimant would not be released, with liberty to apply if it appears that things are not going as they should do. That may be a sensible away around that.[64]DEPUTY JUDGE: I think it would be sensible, whatever order I make, to have a liberty to apply. If an application needs to be made, it may be convenient, if I am available, for it to be made to me because otherwise somebody else would take a little while to familiarise themselves with it, but I certainly do not reserve it to myself because that would be far too inflexible.[65]MR BULEY: I can see that, my Lord.[66]MR COLLINS: So, my Lord, our position is that we would invite you, given what you have said about the alternative suggestion that I make, to make an order in analogous terms to that made by Mitting J.[67]DEPUTY JUDGE: I will hear Mr Buley about that.[68]MR BULEY: Just looking at the conditions in paragraph 39, my Lord. First of all, I can say that my instructions are that, if necessary, my client will comply with those conditions. So ultimately if that is the price of release, we are content with those conditions. But I make a couple of observations. Firstly, in relation to tagging and daily reporting, I have no observations about those. I can see that those are likely to be necessary and sensible. My Lord, I do respectfully say that a 12-hour curfew goes beyond what is necessary. I realise that Mitting J thought it right to impose it in that case, but if you have someone who is on tagging, he can be monitored very closely indeed by the relevant authorities, and a 12-hour curfew, which very substantially restricts his liberty, is an unnecessary burden and restriction, we say, in respect of someone who has had his liberty restricted for so very long. So, my Lord, I am in the your Lordship's hands, but I say that goes further than is necessary.[69]My Lord, in relation to addresses, it is slightly unfortunate the way matters have progressed because he had sought and obtained an address from NASS, the relevant service, as your Lordship no doubt knows. Unfortunately, that was left open for 14 days and because this matter was adjourned, we have lost that. We have sought to re-open it, but certainly we do not, as at this moment in time, have it back. My learned friend is right that this sort of difficulty arises. So whether or not we get that address back -- obviously a condition should be imposed as to an address, and I think we can only say at this stage --[70]DEPUTY JUDGE: An address to be identified.[71]MR BULEY: I think that is right, yes.[72]So the other point to mention is this: I certainly think it must be right that there should be liberty to apply. I take your Lordship's point about difficulties about reserving that to yourself. I do respectfully say that, notwithstanding again that this is not an approach adopted by Mitting J, that there is no reason why -- effectively your Lordship has found that this detention is unlawful. There should, I say, be a long-stop, and therefore, my Lord, if matters cannot be put in place by a particular date, let us say three days from today or four days, then I submit that, in effect, that ought to be an end of the matter and the mandatory order should come into effect.[73]DEPUTY JUDGE: That may turn on what aspect we are talking about. I mean, identifying a residence, that is a matter, so to speak, at your end.[74]MR BULEY: We do not think that will take so long.[75]DEPUTY JUDGE: At the Secretary of State's end is the arrangements for the tagging, and you do not want that to drag on.[76]MR BULEY: Yes, that is right. I do not see they should and I certainly have had cases where they have not, for what it is worth.[77]MR COLLINS: My Lord, if it was simply a matter of tagging, I would have no difficulty with a long-stop; it is plainly right that that ought to be able to be arranged within a week at the most perhaps. It is the accommodation which gives me greatest cause for concern, because bitter experience says that places which look as though they are fine can disappear at short notice. If there is a long-stop date and that results in requiring the claimant to be released in circumstances where no address has been identified, that might be a recipe for disaster. So that is the difficulty which we identify with a long-stop date, but broadly speaking we are in your hands.[78]DEPUTY JUDGE: What do you say about curfew?[79]MR COLLINS: In your hands, my Lord. No strong representations to make either way.[80]DEPUTY JUDGE: I think what I will say is that the bail conditions will not include a curfew. They will include tagging, but with a long-stop of seven days. They will include daily reporting to an immigration office or police station, and they will include residence at an address to be identified, and the claimant will not be released until an address has been identified, and either the tagging has been arranged or seven days has passed, and there will be liberty to either party to apply. Subject to that, I make a mandatory order for the claimant's release.[81]MR BULEY: My Lord, it was flagged up by my learned friend that Mitting J refused to issue the Writ of Habeas Corpus. That is an issue which nothing turns on. I suspect the precise boundaries of Habeas Corpus will be determined by the Court of Appeal probably in the next year or so. It is open to argument either way. We say the jurisdiction in respect of Habeas Corpus is the same as in respect of judicial review. There is a contrary view. I am in your Lordship's hands.[82]DEPUTY JUDGE: I am with the former view myself, but I think in the circumstances I will simply make the mandatory order.[83]MR BULEY: So, my Lord, I think my learned friend, as he suggested, will then tidy up the form of the order and submit something for your Lordship's approval, with agreement between us. I think that deals with the order.[84]DEPUTY JUDGE: That just leaves costs, does it?[85]MR BULEY: It leaves two matters, my Lord. First of all costs. Perhaps, if I deal with that first of all then. Just to indicate to your Lordship where we have got to --[86]DEPUTY JUDGE: Is the other matter future progress of the case? Let us deal with the future progress of the case first.[87]MR BULEY: Can I just take a moment to take instructions?[88]DEPUTY JUDGE: Yes, of course.[89]MR COLLINS: While my friend is doing that, there is another matter. I will be asking for permission to appeal.[90]DEPUTY JUDGE: Let us deal with that after future progress of the case and before costs.[91]MR COLLINS: Yes, my Lord. (Pause)[92]MR BULEY: My Lord, I have just spoken to Mr Collins about this, in relation to future progress. For present purposes I simply suggest that there should be a relatively short stay to allow the parties some time for negotiation because it may be that things will be resolved in another way. In a sense, your Lordship's order today takes some of the heat out of matters, so it may be some progress will be made in that regard, and I think Mr Collins agrees with that.[93]MR COLLINS: Yes, my Lord.[94]DEPUTY JUDGE: Yes.[95]MR BULEY: And liberty to apply to cover the lifting of the stay or any further extension of it. My Lord, costs --[96]DEPUTY JUDGE: Before we come to costs, Mr Collins wants to apply for leave to appeal.[97]MR COLLINS: My Lord, simply on this basis: your Lordship has identified that there are weighty matters on either side of the consideration. If it emerges that your Lordship has given insufficient weight to the risk in particular of absconding and re-offending, then that is a matter which ought properly to be, we say, considered by the Court of Appeal. I ask for permission now, bearing in mind that that would be a matter which would need to be dealt with as a matter of the utmost urgency if an appeal is to proceed.[98]DEPUTY JUDGE: No, I refuse permission to appeal. The principles to be applied are well-established and were not in dispute. The issue was the application of the principles to the particular circumstances and the balance to be struck. There were weighty pointers in both directions.[99]Yes, that leaves costs.[100]MR BULEY: Finally then costs, my Lord. Very straightforward, but just before I make the application, just so you know where we are, you will see in the order of Sullivan J we already have our costs of the hearing on 20 June on the basis that that was a hearing that was made unnecessary --[101]DEPUTY JUDGE: But with a loose end as to whether that is standard basis or indemnity costs.[102]MR BULEY: Yes, my Lord. First of all, my Lord, I apply for the remainder of my costs to date on the ordinary principles. Matters remain outstanding, but everything that has been done to date arises from --[103]DEPUTY JUDGE: Self-contained.[104]MR BULEY: -- the Secretary of State and we say we are entitled to our costs. It should go in the ordinary way, because my client was legally aided, to detailed assessment. So I make that application. My Lord, your Lordship is quite right that Sullivan J left open the question of indemnity costs in relation to the hearing on 20 June. He did so effectively on the basis that -- I think this is right -- that the Secretary of State should have an opportunity to reply to that application and explain his apparent default. Now, my Lord, the position was this: I do not know if your Lordship has access to the order of Lloyd Jones J?[105]DEPUTY JUDGE: Yes.[106]MR BULEY: If I can ask your Lordship to look at that.[107]DEPUTY JUDGE: Yes.[108]MR BULEY: Now, my Lord, this is an order, pursuant to our application for an order in these terms. It was ordered that the matter would be set down for a hearing in the week beginning 16 June, that is the first item, and, my Lord, importantly:
"In any event, the defendant shall serve any evidence and grounds of defence by Tuesday 10 June 2008 ..."
And also various disclosure at item 3. The disclosure was made, albeit it subsequently appears to have been slightly incomplete, but I do not press that point too far. More importantly, my Lord, the defendant failed to comply with paragraph 2, serving evidence and grounds of defence by 10 June 2008, and, my Lord, that had crucial consequences because the result was that the hearing on 20 June was not effective, except insofar as Sullivan J granted permission, and the further consequences being that my client has been in the event detained for a further two to two and a half weeks effectively unlawfully -- I know your Lordship has not strictly ruled on the legality of detention on 20 June, but it is difficult to see how that could be different. So the position is that there has been a very fundamental procedural default in the context of a claim for unlawful detention concerned with the liberty of the subject, requiring the Secretary of State to put in a prompt timely response, which is exactly what he ought to be able to do in any event because in any case where he is detaining someone he ought to know the reasons for doing so. The position was stated to be that he simply needed time to take further instructions, but that is wholly unacceptable in the context of the claimant's detention when he ought already to know why he is detained. So, my Lord, a very serious procedural default on any view, made far more serious by the context, and, my Lord, the consequences of that have been a further period of detention for my client. I do not know if it is necessary to take your Lordship to the case of Minty v Taylor.[109]DEPUTY JUDGE: That is at the back of the authority's bundle.[110]MR BULEY: I suspect your Lordship knows the basis on which an indemnity costs order may be made: either moral censure of the defaulting party or other serious procedural breaches. We say that is clearly made out. It has had very serious consequences for my client, and it is appropriate that the court should mark its disapproval of the way the Secretary of State has conducted this case, and should not, as it were, nod or wink at that failing and allow the Secretary of State to suffer no further consequences as a result thereof. That is my simple submission.[111]DEPUTY JUDGE: Thank you. Mr Collins?[112]MR COLLINS: Firstly, in relation to the costs of the claim as a whole, I have nothing to say, my Lord. So far as the application for indemnity costs is concerned, a couple of observations: plainly, there was a failure to comply with the order. Plainly the court should not (inaudible) do that, and indeed the court did not do so because the defendant was ordered to pay the costs of the hearing. So far as the context is concerned, insofar as it is said that that led to a prolonged period of detention, that is a matter which will sound in damages. If the claimant was unlawfully detained, he is entitled to compensation to reflect that unlawful detention. The length of the period of detention is something which would be taken into account by the court assessing damages. So that is not a matter, we say, which ought properly to be reflected in a costs order.[113]So far as otherwise the context of this being a case involving liberty of the subject, what we say is this: it is essential for the Secretary of State, appearing before this court, to ensure that her case is properly and accurately put in accordance with her duty of candour to the court. This case has been complicated, as your Lordship would have seen, by the policy issues which have been developed for the purposes of this case over the last couple of weeks in terms of the documents which have been disclosed. I and those instructing me felt it essential that the fullest possible understanding of those policy issues should be available to the court if necessary for the hearing. In those circumstances, it was said that -- this is the way that it was put to the court -- that further instructions were needed. The simple answer is that those further instructions were needed. It is plainly right that the order was not complied with. That has been properly dealt with, we say. This is not a case where indemnity costs ought to be ordered.[114]DEPUTY JUDGE: Mr Buley, anything further?[115]MR BULEY: Well, my Lord, very straightforward. In a sense I have made my point. In my submission, it is just not good enough that a matter with this kind of importance, the Secretary of State is not in a position to reply more promptly, and if there are policies which are unlawful and which on the face of it are unlawful --[116]DEPUTY JUDGE: Aggravating rather than mitigating features.[117]MR BULEY: Quite. My Lord, there it is.[118]MR COLLINS: Rather begs the questions whether the policies are unlawful, which I thought was for another day.[119]MR BULEY: They should have been disclosed at an earlier stage.[120]DEPUTY JUDGE: It may be a relatively close-run thing, but I am not going to order indemnity costs in this instance. I do make otherwise an order for the costs in the claimant's favour, to be subject to detailed assessment.