OR, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3867 (Admin)

Case No CO/2358/2011[2013] EWHC 3867 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 December 2013
Before
MS. D. GILLSitting as a Deputy High Court Judge
Between
THE QUEENClaimanton the application ofClaimantORClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Ms Sonali Naik (instructed by Lawrence Lupin Solicitors) for ClaimantMr David Blundell (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 30 July 2013 and 25 October 2013
JudgmentMs. D. Gill :The issues
[1]The claimant, a national of Iraq, was convicted in August 2005 of two counts of detaining a child without lawful authority and sentenced in September 2005 to 2 years 4 months imprisonment in a Young Offenders’ institution. On 8 May 2006, he was released on licence but his detention was continued under immigration powers. On 5 March 2009, he applied for bail. On 16 March 2009, his application for accommodation under section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) was accepted and a bail address provided. He was granted bail on 26 March 2009.[2]Fourteen months later, on 18 May 2010, the claimant was re-detained under immigration powers. Between 12 July 2010 (or thereabouts) and 25 March 2011, he and his representatives made five applications for s.4 accommodation. It was not until 10 November 2011 that the defendant offered him accommodation. This was after a hearing had taken place (on 20 October 2011) before Irwin J when directions were issued for the defendant to serve a witness statement detailing the steps by then taken to obtain a s.4 address, the steps that would then be taken to obtain a s.4 address and, if possible, a decision as to whether and if so when the claimant would be removed. As a consequence, on 4 November 2011, the defendant lodged a witness statement from Ms. Linda Hopkins, Assistant Director on the NAM+ Routing, London and South East Initial Accommodation and Section 4 Bail Team providing that part of the information which is set out at para 11 below in italics. On 9 November 2011, the claimant applied for bail to the First-tier Tribunal (Immigration and Asylum Chamber) (FtT). On 15 November 2011, bail was granted by a judge of the FtT.[3]On 7 February 2012, Mr. John Bowers QC sitting as Deputy High Court Judge granted the claimant permission on the following issues: i) whether the defendant acted lawfully in her treatment of his applications for s.4 accommodation during his detention from 18 May 2010; the claimant asserts that the defendant acted unreasonably in failing to provide him with a bail address from the date of his first application (on or around 12 July 2010) until the grant of accommodation on 10 November 2011; ii) if the defendant’s treatment of his application for a bail address was unlawful, whether this was a material factor in his continued detention from 18 May 2010.[4]In addition, Ms. Naik sought permission at the hearing on 30 July 2013 as follows: i) she sought permission to rely upon Article 5 but limited to the question whether the defendant’s treatment of the claimant’s application for s.4 accommodation prevented him from seeking a speedy resolution of his release from detention contrary to Article 5(4) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”); ii) she sought permission to amend the grounds of claim to add the remedy for breach of the claimant’s rights under Article 5 of aggravated or exemplary damages.[5]Having heard the submissions of the parties de bene esse, I have decided to refuse permission on the Article 5(4) issue. It follows that permission to amend the claim to add the remedy of aggravated or exemplary damages is also refused. My reasons are given below.[6]The reason why Ms. Naik was constrained to seek permission to rely on Article 5 in limited terms is that at the permission hearing on 7 February 2012, Mr. John Bowers QC sitting as a Deputy High Court Judge refused permission on all grounds save for the s.4 argument. The Court of Appeal rejected a subsequent attempt to renew the application for permission in R (SG and OR (Iraq)) v. Secretary of State for the Home Department [2012] EWCA Civ 940, [2013] 1 WLR 41. The claimant is OR (Iraq) in SG and OR (Iraq). This is the leading authority on the granting of injunctions pending the determination of country guidance appeals. The claimant’s case on the s.4 accommodation issue[7]Amongst the documents disclosed by the defendant to the claimant are notes on a computer file called “GCID – Case Record sheet”. “GCID” stands for “General Case Information Database”. The entry for 23 December 2010 (A341) states:
“… the subject is not suitable for initial accommodation. He should not be housed near schools or parks”
. On 11 January 2011, the Case Owner handling the claimant's s.4 application said that the claimant “should not be placed near parks and schools”. The GCID entry for 6 April 2011 states:
“section 4 bail support provided 3 bail addresses. Unfortunately all 3 were withing [sic] 0.5 of a mile from both primary and secondary schools. We would want the accommodation to be no closer then [sic] 3 mile radius from schools.”
[8]It is not in dispute that the accommodation that the claimant was eventually offered on 10 November 2011 and to which he was released on bail did not comply with the criterion of being at least three miles away from schools and parks.[9]The claimant’s case on the s.4 accommodation issue is that the defendant acted unreasonably in handling his application for a bail address, in that she exercised her discretion unreasonably in imposing a condition that any accommodation offered to him must not be within three miles of any schools or parks. He asserts that the fact that the discretion was exercised unreasonably is shown by the following:(a) In March 2009, his application for s.4 accommodation was processed within two weeks and he was offered accommodation that was in fact situated near to both primary and secondary schools and public parks.(b) When he was offered accommodation in March 2009, he had already been convicted of the offences of the abduction of two 12-year- old girls and thus the criminal convictions could not be a reason for distinguishing the treatment of his application for s.4 accommodation in 2010/2011 from the treatment of his application for s.4 accommodation in 2009.(c) Having been released from immigration detention in March 2009 to s.4 accommodation, he lived at that address for 14 months. During this 14- month period, he reported as directed and complied with his bail conditions; there were no incidents recorded against him.(d) The accommodation he was eventually offered in November 2011 did not in fact comply with the three-mile criterion.(e) His risk of harm to the public was no higher in November 2011 than in March 2009. To the contrary, the documents disclosed by the defendant show that the claimant had in fact been assessed as presenting a medium risk of re-offending with a low risk of harm in March 2009, yet in June 2010, the defendant recorded that he posed a serious risk of harm notwithstanding the fact that there were no criminal convictions or incidents during the period of 14 months between his release in March 2009 and his re-detention in May 2010 and he reported as required.(f) His risk of re-offending and risk of absconding were no higher in November 2011 than in March 2009. Ms. Naik’s skeleton argument contends (paras 73 and 75) that the defendant cannot point to any additional factors post-dating the release in March 2009 to suggest that the weight to be given to the risk of re-offending and the risk of absconding had changed. Relevant factual background[10]In relation to the claimant’s detention from May 2006 until March 2009, the chronology of relevant events is as follows: 8 May 2006 Claimant released on licence from his sentence; his detention was continued under immigration powers. 20 Aug 2008 GCID entry of this date states: “Email rec’d from our Security department. They have been in contact with subjects old probation officer and have been informed that he is a high risk offender with child protection markers.” 5 Mar 2009 Bail application lodged. 16 Mar 2009 S.4 bail application accepted and bail address provided (Address1). Address held until 29 March 2009. 26 Mar 2009 Bail granted.[11]In relation to the claimant's detention from 18 May 2010 until 15 November 2011, the relevant facts are set out below. The notes in italics are based on para 6 of the statement of Ms. Hopkins. It is appropriate to say at this point that the first sentence of para 6 of the statement incorrectly states that the claimant's first application for a bail address was made on or about 17 August 2010. Mr. Blundell accepted that the first application was made on or about 12 July 2010: On or about 12 July 2010: The claimant applied for s.4 accommodation. This was his first application in relation to the claim which is the subject of these proceedings. It appears that the claimant’s first application was misplaced. 20 Sep 2010: Claimant’s application for a bail address re-faxed to the s.4 bail team (see Exhibit LH 1 to the statement of Ms. Hopkins). 1 Oct 2010: Bail hearing before the FtT (Judge Curzon-Lewis). The bail application was withdrawn (B708-709), the judge saying that the application could not get off the ground if there was no bail address and no surety and that, even if there had been a bail address, he would have been minded to refuse bail in any event, due to lack of sureties. 27 Oct 2010: The claimant made a (second) application for bail accommodation (B699-700). This second application was received by the s.4 bail team on the same date (Exhibit LH 2 to the statement of Ms. Hopkins). 18 Nov 2010: The claimant made a (third) application for bail accommodation (B701). 14 Dec 2010: The claimant made a (fourth) application for bail accommodation (B702). 23 Dec 2010: A pro forma regarding suitable s.4 accommodation was completed on this date (Exhibit LH 3to the statement of Ms. Hopkins). 23 Dec 2010: GCID entry of this date by the s.4 bail team states: “I have confirmed subject is not suitable for initial accommodation. He should not be housed near school or parks” (B341). 11 Jan 2011: The Case Owner handling the claimant’s s.4 application said that the claimant “should not be placed near parks and schools” (see Exhibit LH 4 to the statement of Ms. Hopkins). 27 Jan 2011: The defendant’s accommodation provider was contacted to source accommodation under the new contract but confirmed that this was not possible due to restrictions on 27 January 2011 (see exhibit LH 5 to the statement of Ms. Hopkins). 7 Feb 2011: The s.4 bail team emailed the Case Owner asking whether the claimant could be accommodated near schools. 8 Feb 2011: The Case Owner responded stating that as the claimant had been convicted of crimes against a minor, he would not be allowed to reside near schools (see exhibit LH 6 to the statement of Ms. Hopkins). 3 Mar 2011: The claimant included a bail application in his judicial review claim lodged on this date challenging his failure to provide him with an address. He made this application in person. 25 Mar 2011: The claimant made a (fifth) application for bail accommodation through his solicitors. 5 April 2011: The defendant’s s.4 bail team contacted the accommodation provider to source accommodation that was not overlooking a school (see exhibit LH 8). 6 Apr 2011: A GCID entry of this date states: “section 4 bail support provided 3 bail addresses. Unfortunately all 3 were withing [sic] 0.5 of a mile from both primary and secondary schools. We would want the accommodation to be no closer then [sic] 3 mile radius from schools” ** 12 Apr 2011: The defendant’s accommodation provider responded to give three property options (see exhibit LH 7 to the statement of Ms. Hopkins for property details). These were considered unsuitable as they were all within 3 miles from a school, the claimant having been convicted of offences against a minor (see exhibit LH 8 to the statement of Ms. Hopkins). ** 9 June 2011: His Honour Judge Bidder QC refused permission on the papers, stating that the bail application was premature in the absence of accommodation, but that even if accommodation was available, there was a strong likelihood that the claimant would not be granted bail. 7 Aug 2011: Defendant made a referral for the claimant’s release under strict contact management once an appropriate release address is provided. This is notified to the claimant in the letter dated 30 August 2011 referred to below. 30 Aug 2011: By a letter of this date from the Criminal Casework Directorate (CCD) (page 383-385), the defendant refused three applications for temporary admission made by the claimant, received by the defendant on 6 July 2011, 28 July 2011 and 15 August 2011 and which were treated by the defendant as applications for bail and for temporary admission. The letter states that it was not the responsibility of the CCD to grant the claimant’s application for NASS accommodation, that the claimant had failed to provide a proposed release address or sufficient information concerning the proposal to be released to his relative’s address. 2 Sep 2011: As a result of being unable to obtain accommodation that satisfied the requirement for the accommodation to be not less than 3 miles from a school, the s.4 bail team requested the provider to source accommodation that was as far as possible away from schools from the accommodation available under the varied Target Contract. The statement of Ms. Hopkins states that the distance of the allocated accommodation from the nearest schools would be clearly specified in the section 4(1)(c) grant letter, and would make absolutely clear that the accommodation, though the most suitable available under the Target Contracts, does not fully satisfy the accommodation requirement specified by the Case Owner. 13 Sep 2011: The s.4 bail team requested an update from the accommodation provider on the status of the accommodation booking. 20 Oct 2011: Hearing before Irwin J (judgment now reported: [2011] EWHC 3818 (Admin)). Directions were issued to the defendant to serve a witness statement detailing the steps by then taken to obtain a s.4 address, the steps that would then be taken to obtain a s.4 address and, if possible, a decision as to whether and if so when the claimant would be removed. 27 Oct 2011: The s.4 bail team chased the accommodation provider for an answer. 2 Nov 2011: The s.4 bail team chased the provider for an answer. 3 Nov 2011: The accommodation provider proposed an address of [Address2]. The s.4 bail team decided to issue the claimant with this bail address on 9 November. The distance from the local amenities was as follows: 0.11 miles from a Primary School [A] 0.44 miles from a Secondary School [B] There is a leisure centre 1.9 miles from the address. There is a children’s play centre 0.4 miles from the address. There is a park with sports facilities within 1 mile from the address. 4 Nov 2011: The defendant lodged the witness statement (B474-506) of Ms. Linda Hopkins. The statement explained the steps that had so far been taken to identify a bail address. As a bail address had been identified (Address2), Ms. Hopkins considered that it was not necessary to explain the steps that would then be taken to provide a bail address. She when on to deal with whether and if so when the claimant would be removed. 9 Nov 2011: Application for bail lodged. 10 Nov 2011: Defendant offered Address2 as bail address. 15 Nov 2011: Claimant granted bail by the FtT on conditions of residence, reporting and tagging. ** There appears to be some error (which was not picked up by the parties and which in my view is immaterial) as to whether the three properties were offered on 6 April 2011 (as stated in the GCID entry for that date) or 12 April 2011 (according to the statement of Ms. Hopkins and Exhibit LH 6 to her statement). Procedural history[12]The procedural history of this case prior to the hearing on 30 July 2013 is long and complex. It is set out at paras 16 to 32 of the Court of Appeal’s judgment in SG and OR (Iraq). It is not necessary to repeat that history here.[13]Towards the end of the hearing on 30 July 2013, I noticed that the policy document described as “Asylum Instruction” (hereafter “AI”) that was included at tab 7 of the “Authorities bundle” was version 8 that was in force from 22 February 2011. It was clear that I had not been provided with the version in force in March 2009 and all of the versions which applied during the period from May 2010 to November 2011. Accordingly, with the agreement of Ms. Naik and Mr. Blundell, I issued directions for the defendant to submit the missing policies.[14]On 1 August 2013, Mr. Blundell served a “Post-hearing note on policy” and a “Policies bundle” containing versions 4, 6 and 7 of the AI (see para 33 below). The Post-hearing note explained in brief the differences between these policies insofar as relevant to the issues in this case. In particular, it was stated that the version in force in March 2009 (version 4) did not contain any reference to assessing the suitability of accommodation for those who have served criminal sentences of imprisonment, nor did it contain any reference to the particular situation of children or to s.55 of the Borders, Citizenship & Immigration Act 2009 (“the 2009 Act”). Para 5 of the Post-hearing note then states: “The absence of any reference to these matters explains why the Claimant was released in 2009 without the same focus on the suitability of his accommodation and the need to accommodate him as far away as possible (and later, 3 miles away) from schools and playgrounds. It is also explained by the fact that section 5 of the 2009 did not come into force until 2 November 2009.” (my emphasis)[15]In her reply to the Post-hearing note, Ms. Naik drew attention to the possible shift in the defendant’s case, from her earlier position (that the justification for the perceived difference in treatment of the claimant’s s.4 applications in March 2009 and in July 2010-November 2011 was the diverse but rational views of different caseworkers) to one which relied upon a material policy change due to a change in the statutory framework. Ms. Naik submitted that such a change in the defendant’s position constituted a wholesale change in her case. It amounted to an application to substantially amend the defence after the close of the case. Ms. Naik submitted that this was impermissible without the hearing being reconvened and further evidence being filed. She submitted that any such amendment would sound in costs in any event.[16]I directed the matter to be re-listed for hearing on the first available date; any application by the defendant to amend her case to be made on or before 23 August; and any application by the claimant to cross-examine Ms. Hopkins to be made on or before 30 August 2013.[17]The defendant did not make an application to amend her case.[18]On 22 August 2013, Ms. Naik applied to cross-examine Ms. Hopkins. By an order dated 18 October 2013, I refused the application, stating that, given that the defendant had not made an application to amend her case and that the parties had closed their respective cases at the previous hearing, the grounds did not provide any satisfactory reasons to permit cross-examination.[19]The case was re-listed for hearing on 25 October. Mr. Blundell’s skeleton argument confirmed that the defendant did not seek to amend her case.[20]However, Mr. Blundell’s skeleton argument also stated that, having reviewed the Post-hearing note, the defendant accepted that the use of the word “explains” at para 5 of the Post-hearing note could be understood as putting her case too high. Given that there was no express reference in the papers to the reasons for the distinction between the terms of the release on the two occasions, the defendant could not submit that this was definitely the reason for the difference and had not intended to do so. The defendant therefore sought to replace “explains” in line 1 of para 5 of the Post-hearing note with “may explain”.[21]At the hearing, Ms. Naik submitted that the Post-hearing note and the submission of the Policies bundle amounted to an amendment of the defendant’s case even if this was denied. She did not specifically engage with the arguments in Mr. Blundell’s skeleton argument, summarised in the preceding paragraph.[22]I agree with Mr. Blundell that the defendant’s case has not changed with the submission of the Policies bundle and the Post-hearing note (as amended). It is plain that it has always been the position of the defendant that the difference between the treatment of the requests for a bail address in 2009 and in 2010/2011 was explained by the decisions being made by two different caseworkers on two different occasions and that the policies in place provided the context within which the decisions were made and may explain the different treatment. I say this for the following reasons: i) Version 8 was contained in the Authorities bundle. Version 8 specifically referred to the duty under s.55 of the Borders, Citizenship & Immigration Act 2009 and the need to assess the seriousness of an individual's convictions. ii) Mr Blundell’s skeleton argument for the hearing on 30 July 2012 specifically referred (at para 35-37) to the terms of the policy set out in version 8. iii) The “summary grounds for contesting the claim” (undated but served some time ago) also refer to a policy (at paras 13-15). Indeed, para 13 specifically states that in June 2009 the process for issuing bail addresses under s.4 was changed, with the use of temporary “Initial Accommodation” followed by more permanent “Dispersal Accommodation”. Para 14 states that Initial Accommodation may not be suitable for everyone, for example, those who by reason of their previous criminal offences might pose a risk to other residents, including vulnerable residents such as young children, and that, if Initial Accommodation is not offered, more permanent accommodation is pre-booked, if considered appropriate, against the contingency of bail being granted. Para 15 specifically refers to s.55 and the defendant’s statutory duty to have regard to the need to safeguard and promote the welfare of children when providing s.4 accommodation. iv) It is therefore clear in my judgment that the defendant’s position has always been that caseworkers make their decisions within the context of the policies that apply at the time they make their decisions and that the content of the policies in question are informed by the relevant legal framework.[23]I am satisfied that, rather than amending her case, the defendant had simply overlooked placing before the court copies of all the relevant policies. The change in policy in June 2009 and the advent of the s.55 duty had already been mentioned in the “summary grounds for contesting the claim”. Any potential prejudice arising as a result of this oversight in placing before the court copies of all relevant policies was adequately addressed by the claimant being given a full opportunity to address the court in writing as well as at a hearing on 25 October 2013. I will deal with those submissions below.[24]At the hearing on 25 October, Ms. Naik renewed the application to cross-examine Ms. Hopkins. I refused the application. My reasons are as follows: i) The claimant’s previous application for permission to cross-examine Ms. Hopkins had been refused on 7 February 2012 by Mr. Bowers QC sitting as a Deputy High Court Judge, on the ground that she gave purely formal evidence to exhibit the various relevant documents and that her role had thus been extremely limited. The claimant either did not take issue with this aspect of the judge’s ruling when he appealed to the Court of Appeal or the Court of Appeal ruled against him. Ms. Naik did not identify any change in the circumstances since that refusal to support the new application. I have rejected her argument that the defendant had amended her case by submitting the Post-hearing note and the Policies bundle. ii) The witness statement of Ms. Hopkins only dealt with the narrow questions posed by Irwin J in his directions. In particular, it should be noted that Irwin J did not direct the defendant to serve a statement dealing with the handling of the claimant’s application for a bail address in 2009. Accordingly, her statement does not shed any light on the handling of the claimant’s s.4 application in March 2009. iii) Ms. Naik informed me that she wished to question Ms. Hopkins on how the question of suitability of accommodation was determined at various times and that more information was needed than had been supplied. She confirmed that she did not suggest that the evidence of Ms. Hopkins in her witness statement was incorrect. Rather, it was incomplete. I am satisfied that all of this self-evidently shows that the application to cross-examine Ms. Hopkins was no more than an attempt to embark upon a fishing exercise in the hope that something might emerge to assist the claimant's case or damage the defendant’s. iv) Mr. Blundell relied upon para 24 of the judgment of Lord Neuberger MR in Bubb v. Wandsworth LBC [2011] EWCA Civ 1285, [2012] HLR 13 to the effect that, whilst it was open as a matter of principle to a judge in a judicial review application to permit one or more parties to call oral evidence, such a course should only be taken in the most exceptional cases, as there is a danger of the judge making his own decision rather than reviewing the original decision. Ms. Naik relied upon a number of cases:(i) R (Wilkinson) v. Responsible Medical Officer of Broadmoor Hospital [2001] EWCA Civ 1545;(ii) R (N) v. M and others [2003] 1 WLR 562;(iii) R (Al Sweady) v. Secretary of State for Defence [2009] EWHC 2387;(iv) R (MH) v. Secretary of State for the Home Department [2009] EWHC 2506; and(v) R (Khalid) v. Secretary of State for the Home Department [2012] EWHC 421. On these authorities, Ms. Naik submitted that Bubb was not applicable in judicial review cases as it concerned a statutory appeal and that the correct approach in judicial review cases was that cross-examination should be permitted where there is a substantial factual dispute. I do not need to decide whether the correct approach is that set out in Bubb or the authorities relied upon by Ms. Naik. Even if Ms. Naik is correct, she failed to identify a “substantial factual dispute”; indeed, she failed to identify any factual dispute. She said, referring me to CPR 54.15, that the factual dispute was:
“what procedural requirements were met, whether the caseworker had applied the policy, how suitability was determined”
. These questions do not disclose any factual dispute. To the contrary, they further supported my view that Ms. Naik's proposed lines of enquiry amounted to no more than a general fishing expedition. Furthermore, and as Mr. Blundell confirmed, the claimant had had full disclosure of all documents in his case. There was nothing more than could be said in his case. Ms. Hopkins could not shed any light on the reasons for any differences in the approaches of the caseworkers who handled his s.4 application in March 2009 and those who handled his applications from 12 July 2010. The s.4 accommodation issue The background to the policy change and the legal principles[25]S.4 of the 1999 Act insofar as relevant provides:
“(1) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons— … (c) released on bail from detention under any provision provision of the Immigration Acts. (2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if— (a) he was (but no longer is) an asylum-seeker, and (b) his claim for asylum was rejected.” … (c) released on bail from detention under any provision provision of the Immigration Acts. (a) he was (but no longer is) an asylum-seeker, and (b) his claim for asylum was rejected.”
[26]I was referred to the judgment of Nicol J in Razai & Ors v Secretary of State for the Home Department [2010] EWHC 3151(Admin) (02 December2010), from which it can be seen that the process for handling applications for a bail address under s.4 changed from June 2009 as was said in the instant case in the “summary grounds for contesting the claim”. Until then, the Secretary of State’s practice was to respond to an application for a bail address within a few days and to allocate accommodation which could be used by the detainee on a long-term basis if bail was granted. The Secretary of State concluded that this system was costly and inefficient (para 30). The new system introduced from June 2009 was that Initial Accommodation was arranged where a detainee who was granted bail could expect to live for two weeks or so while appropriate long-term Dispersal Accommodation was arranged (para 31).[27]This threw up a problem as the Secretary of State came to realise that it was not appropriate for detainees who were assessed as ‘high risk’ to share facilities with residents. The fact that there was a very limited supply of self-contained single occupancy accommodation that was regarded as suitable for ‘high risk’ cases prompted two things: a risk analysis for each individual case and a degree of negotiation and persuasion with the existing contractors (para 32). The result was that for high risk cases, rather than a bail address being given within a few days of application, the process could take weeks, months and in some cases lead to outright refusal by the Secretary of State to provide accommodation (para 33).[28]The guidance to caseworkers on the s.4 bail team in assessing whether an individual was high risk was contained in unpublished parts of the policies applicable from January 2010. These were disclosed to the court during the course of the proceedings in Razai (paras 35, 36, 38 and 39). In the hitherto unpublished parts of the policy introduced in January 2010, the standard process for deciding s.4 applications was displaced and the interim process specified in “Serious Offenders” used instead if the applicant had been convicted of a serious offence “such as murder, extreme violence, or sexual offences” (para 35). In a subsequent policy, introduced in October 2010 (para 37), the unpublished part required caseworkers to consider whether the applicant had a criminal conviction for, or whether there was reliable evidence that the applicant had committed, a “violent, sexual or serious drug offence (bar minor possession)” (para 38).[29]If a detainee was assessed as being at high risk so that he/she was considered unsuitable for an immediate offer of Initial Accommodation, delays of weeks or months could occur in any offer of accommodation being made, if it is made (paras 3 and 85).[30]Razai indicates that it was a possibility, under the terms of the Secretary of State’s policies, that it may not be possible in an individual case to offer s.4 accommodation (para 77). Para 96 of the judgment in Razai states that the Secretary of State accepted that in theory one-off contracts could be negotiated to provide bail addresses for all high risk cases but that this would be disproportionately expensive and burdensome to manage.[31]The principles to be derived from Razai (insofar as relevant to the issues is this case) can be stated as follows: i) S.4(1) confers a power on the Secretary of State to provide accommodation to people admitted to bail from immigration detention, not a duty (paras 22 and 24). ii) In Razai, it was accepted on the Secretary of State’s behalf that there was a duty on the Secretary of State to use reasonable endeavours to provide a bail address if the person concerned would otherwise be likely to remain in detention. Nicol J was prepared to consider the claims before the court on that basis, without deciding the point (para 26). iii) The failure to publish a policy is not in itself unlawful even where the policy may have a bearing on whether a person is or is not detained. On the other hand, it may be unlawful for the Secretary of State to maintain an unpublished policy which is inconsistent with her published policy (paras 74 and 111 vi)). This is consistent with the subsequent judgment of the Supreme Court in Lumba v. SSHD [2011] UKSC 12. However, Nicol J held that there was no inconsistency between that and the published and unpublished parts of the January 2010 policy (para 76) or the October 2010 policy (para 77).[32]Further, at paras 85, 87 and 99, Nicol J said:
“85. …even a provisional decision, that a detainee is not suitable for an immediate offer of Initial Accommodation, was of such significance that fairness does require the Secretary of State to tell the applicant that is what she has in mind and why. That is because of the stark difference between the time that it takes to offer Initial Accommodation as a bail address (only a few days) and the delays that can occur if Initial Accommodation is not offered (on the evidence, delays of weeks or months). Fairness also requires the SSHD to take into account any representations that are made in response…. 87. … the detainee needed to be in a position to know whether he can properly challenge the Secretary of State’s decision to detain him in the courts by way of an application for habeas corpus or judicial review or whether he can apply for bail on a meaningful basis. The reason why the detainee needs to know why he is regarded as a high risk case, on the other hand, is so that he can make submissions to the contrary to the SSHD or, I suppose, to decide whether there are grounds to challenge the legality of the decision not to treat him as suitable for Initial Accommodation. I also agree that the inexactness of the match between reasons for detaining the person concerned and the reasons why Initial Accommodation is thought to be unsuitable and the desirability of clarity mean that the detention reviews are no substitute for the information which I consider the SSHD is lawfully obliged to provide to an applicant who is not thought to be suitable for Initial Accommodation. 99. I also agree with Mr Johnson that a declaration in favour of Mr Rashid and Mr Draga (even if otherwise justified) would serve no purpose and, for that reason, should not be considered. I say ‘even if otherwise justified’ because, while it is not necessary for me to make a definitive ruling, there is force in the more general submissions which Mr Johnson made. This was a policy in evolution. Its impact on high risk detainees had not been foreseen, but, when identified, some steps were taken to address it. Notably, in the summer of 2010, there was a reappraisal of some of the cases which had previously been identified as requiring self- contained accommodation and offers of Initial Accommodation were made instead. Steps are being taken to expand the amount of self-contained accommodation that is available. But, as the Claimants accept, the amount of available resources, is a real constraint which the Court cannot ignore. It would seem that the completion of some pro formas is taking very much longer than the policy itself says is appropriate. The reasons for this are not very clear, but, here too, the SSHD appears to be taking steps to deal with the issue. In any case, as Carnwarth LJ emphasised, maladministration and muddle have to be distinguished from illegality.”
The policies submitted[33]The Post-hearing note and the Policies bundle submitted by Mr. Blundell show that the following policies applied at the times stated below:(a) The version of the policy in force in March 2009 was version 4.(b) Three policies applied during the period of the claimant’s detention from July 2010 until November 2011, as follows: i) version 6 (which came into force on 26 May 2010 and which is at tab 4 of the Policies bundle) applied for the period from July 2010 until 29 September 2010; ii) version 7 (tab 5 of the Policies bundle) which applied from 30 September 2010 until 21 February 2011; iii) version 8 (tab 7 of the Authorities bundle) which covered the remainder of the claimant’s detention (i.e. from 22 February 2011 until 15 November 2011).[34]Version 4 did not mention s.55 of the 2009 Act by which the best interests of children had to be considered. Neither did version 6, although s.55 had already come into force in November 2009.[35]Version 4 did not mention the need for a caseworker to assess the suitability of accommodation for those who have served criminal offences. However, versions 6, 7 and 8 did, although in different terms, as Razai indicates. Version 6 required caseworkers to consider whether the applicant had been convicted of a serious offence “such as murder, extreme violence, or sexual offences” and versions 7 and 8 required caseworkers to consider whether the applicant had a criminal conviction for, or whether there was reliable evidence that the applicant had committed, a “violent, sexual or serious drug offence (bar minor possession)”. If the answer was yes, then, as stated in Razai, the standard process (which resulted in an immediate offer of accommodation on Initial Accommodation) was displaced in favour of a different process by which the caseworker was required to obtain further information from the applicant’s Criminal Casework Directorate Case Owner (to be distinguished from the caseworker in the s.4 bail team) in order to arrange suitable bail accommodation if appropriate. It was the Case Owner who had overall responsibility for ensuring that appropriate bail accommodation was arranged. We know from Razai that, where this happened, delays of weeks or months could occur before any offer of accommodation is made, if it is made. Discussion[36]Before I turn to consider the case advanced on the claimant's behalf I should point out that Ms. Naik accepted that the defendant had not actually refused the claimant's application for a bail address at any point, notwithstanding the repeated references in her skeleton argument of the hearing on 30 July 2013 to the defendant having done so.[37]The challenge brought against the defendant’s treatment of the claimant's application for a bail address is a rationality challenge, i.e. that the defendant acted unreasonably in imposing the conditions that were imposed on any accommodation that was to be offered to him and that, by doing so, there had been an unlawful delay in the handling of his application for a bail address.[38]In support of the argument that the defendant acted unreasonably in imposing the said conditions, Ms. Naik relies upon the arguments set out in para 9 above. In essence, she seeks to compare the time that was taken to offer the claimant accommodation in March 2009 and in response to his applications in 2010/2011; the accommodation the claimant was offered in March 2009 with the accommodation he was offered in November 2011; the risk of harm, re-offending and absconding that the claimant posed in March 2009 and in November 2011; and that (in her submission) the claimant had not had any criminal convictions or convictions recorded against him during the 14-month period between his release in March 2009 and his re-detention in May 2010 when he lived at the address to which he had been bailed and he reported as required.[39]The claimant’s arguments are fundamentally misconceived. This can be demonstrated by assuming for the purposes of argument that there were no changes in the defendant’s policy for handling applications for a bail address and allocating appropriate accommodation (which, of course, is not the case, as stated above). If there had been no change in policy and no change in the statutory regime so that all things remained equal, the mere fact that two caseworkers reached different decisions does not mean that the one who imposed restrictions on the type of accommodation that could be offered is the one who acted unreasonably in doing so. Indeed, there is more reason in this particular case to say that it was unreasonable for the first caseworker not to have imposed any such restrictions, especially given the claimant’s convictions and the fact that a GCID entry for 20 August 2008 specifically stated that the claimant’s probation officer was of the view that the claimant was a high risk offender with child protection markers.[40]When one then factors in the policy change in June 2009 and the fact that a caseworker’s decision on a s.4 application is made within the context of the applicable policy at the time the decision on the application is made, it is simply impossible to say that the decision to impose the restrictions was unreasonable, given what is said in version 8 about the displacement of the standard process for offering Initial Accommodation in favour of a process which required information from an individual's CCD Case Owner (as opposed to the s.4 bail team) and the responsibility that that Case Owner is given for ensuring that appropriate bail accommodation is arranged, if it is offered.[41]Accordingly, in my judgment, the comparison that the claimant seeks to make to demonstrate that the decision in 2011 to impose restrictions on the type of accommodation he was to be offered was unreasonable is overly simplistic. It ignores the fact that caseworkers do not make their decisions in a vacuum; they have regard to policies that are applicable at the time, as was contended on the defendant’s behalf in the “summary grounds for contesting the claim” and the skeleton argument for the hearing on 30 July 2013.[42]The claimant's arguments in support of the contention that the defendant had acted unreasonably in imposing restrictions on the accommodation he was to be offered fall far short of showing any unreasonableness. On a proper analysis, it is my firm view that these arguments amount to no more than a disagreement.[43]Similarly, Ms. Naik relies on the fact that Address2 was similar to or the same as Address1 in terms of its proximity to schools and parks in order to demonstrate unreasonableness in the defendant’s decision to impose the restrictions. This simply ignores the evidence of Ms. Hopkins that attempts were made to obtain accommodation which did meet the three-mile criterion. When it became clear in September 2011 that it would not be possible to meet the three-mile criterion, the s.4 bail team varied the restriction, whilst still seeking to meet the defendant’s duty to protect the public. It is therefore misconceived to make a straight comparison between Address1 and Address2 and ignore the fact that the defendant was entitled to attempt to find accommodation which did meet the three-mile criterion to meet her duty to protect the public.[44]Turning now to Ms. Naik’s reply (hereafter referred to as “the Reply”) to Mr. Blundell’s Post-hearing note, I note in passing that this was the first time any attempt was made on the claimant’s behalf to actually engage with the potential relevance of the defendant’s policy/(ies) in handling s.4 applications notwithstanding that the defendant’s “summary grounds for contesting the claim” mentioned the change in policy in June 2009 and Mr. Blundell's skeleton argument dealt with version 8 of the policy.[45]Para 2 of the Reply states that the change in policy from June 2009 and the introduction of s.55 cannot justify the decision in January 2011 and April 2011 to impose the three-mile criterion on the accommodation to be offered to the claimant for the simple reason that the claimant was offered accommodation in March 2009 and remained in that accommodation until 18 May 2010. Ms. Naik argues that, if the policy had changed, there is no explanation why the claimant was able to remain in the same accommodation given its proximity to schools and parks for a further six months after the s.55 duty came into effect. I do not consider that this argument has any substance. It is based on an assumption that any process the defendant may have for monitoring the continued suitability of accommodation once it has been offered and occupied generally works in such a way that the lack of any action on the part of the defendant for a period of six months is a significant indicator of the view the defendant takes of the risk posed by the claimant to the public, as opposed to being an indicator of maladministration or inefficiency. There is no evidence on this one way or the other.[46]Para 4 of the Reply does not make sense. Ms. Naik says that none of the policies refer to the s.55 duty, which is incorrect because versions 7 and 8 did refer to the s.55 duty. The timing of the first notification of a restriction on the accommodation – i.e. 11 January 2011 (witness statement of Ms. Hopkins) – is consistent with version 7 coming into force on 30 September 2010. True it is that, given that s.55 came into force in November 2009, it is difficult to see why version 6, which came into force on 26 May 2010, made no mention of s.55. However, the claimant cannot build his case on the s.4 accommodation issue on ineptitude or incompetence. What matters here is that the timing of the imposition of the restrictions in his case ties in with the coming into force of the policy that first mentions the s.55 duty.[47]Para 6 of the Reply contends that there was nothing in the policies which demonstrates that in the cases of persons on the sex offenders’ register, accommodation would only be suitable if it is as far away as possible from schools and public parks or that a three-mile minimum radius was necessary. This submission is misconceived. It ignores the fact that versions 7 and 8 confer overall responsibility for ensuring appropriate bail accommodation was arranged on the individual’s CCD Case Owner. The GCID entry for 23 December 2010 and the evidence in the statement of Ms. Hopkins concerning the advice from the Case Owner on 11 January 2011 is consistent with the requirement in version 7 of the policy (that was in place at this time) in showing that the restriction was placed by the CCD Case Owner.[48]The GCID entry for 23 December 2010 indicates that the claimant was confirmed as being not suitable for Initial Accommodation on or around that date. This was the date on which a pro-forma regarding suitable accommodation was completed, according to the witness statement of Ms. Hopkins. It is clear from para 85 of Razai that the decision that the claimant was not suitable for Initial Accommodation was of such significance that fairness required the defendant to tell the claimant what she had in mind and why, to enable him to make any representations that he might have wished to make in response to that decision. He might have wished to challenge the legality of the decision to treat him as unsuitable for Initial Accommodation.[49]The defendant’s failure to inform the claimant of the decision that he was not suitable for Initial Accommodation was compounded by the fact that the claimant was not informed of the imposition of restrictions when they were first imposed (11 January 2011) when the Case Owner said that the claimant should not be placed near parks and schools. Fairness required the claimant to have been told that his risk was considered such that these restrictions were considered appropriate. Again, he might have wished to make representations or decide whether there were grounds to challenge the legality of the decision to impose the restrictions.[50]I therefore agree with Ms. Naik’s submission at para 5 of her Reply that the claimant was entitled to be told of the reasons for the imposition of the restrictions.[51]However, Ms. Naik has advanced before me representations on the claimant's behalf as to the reasons why the defendant’s decision to impose any restrictions was unreasonable. I have considered those submissions and rejected them as either amounting to no more than a disagreement on the merits of the treatment of the s.4 application or as being misconceived. Accordingly, I am satisfied that the claimant's submissions are not such that, had they been made at the relevant time to the defendant, they would necessarily have led to Initial Accommodation being offered or the defendant widening her criteria for suitable Dispersal Accommodation for reasons other than the reason she did (i.e. that suitable Dispersal Accommodation which matched the three-mile criterion was simply unavailable) or offering such accommodation sooner than she did.[52]For the above reasons, I have concluded that the defendant did not act unreasonably in imposing restrictions on the accommodation to be offered to the claimant in the event accommodation was offered to the claimant.[53]On the issue of delay, the claimant's case is that the delay that ensued as a result of the defendant’s unreasonable decision to impose restrictions on the accommodation he was offered is unlawful for that reason. Since I have concluded that the defendant did not act unreasonably in imposing those restrictions, his case on delay cannot succeed. He has not been granted permission to argue that his detention during any period of delay was unlawful in line with the guidance in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704.[54]Thus, whilst it is clear that there was some maladministration and muddle, in that, for example: i) there was a period of two months during which time the claimant's first application was misplaced (his application was made on or about 12 July 2010, as Mr. Blundell accepted, and not on or about 17 August 2010 as stated in the statement of Ms. Hopkins, but the s.4 bail team did not log the application until 20 September 2010 when it was re-faxed); and ii) the period for completing the pro forma in accordance with the policy (“immediately”) was exceeded by a wide margin (three months from 20 September 2010, when the claimant’s application was logged, to 23 December 2010); and iii) nothing very much in relation to the s.4 application appeared to have happened for the period of five months from 13 April 2011 or 1 September 2011. the fact that the delay is not underpinned by any illegality is important. Also relevant are the observations that Nicol J made at para 99 of Razai, to the effect that the defendant’s policy for handling s.4 applications was in evolution at the time; its impact on high risk detainees had not been foreseen but, when identified, some steps were taken to address it; and that the defendant was taking action to deal with the problems that were being encountered with the introduction of the new policies, including the delays in completing the pro formas.[55]In all of the circumstances, I would refuse to consider making a declaration on a case based on pure delay (which has not been advanced) in showing illegality in the defendant’s handling of the claimant's s.4 application. Article 5 (4)[56]Since I have concluded that the defendant’s treatment of the claimant’s s.4 application was not unlawful, I refuse permission to argue that her treatment of his application prevented him from seeking a speedy resolution of his release from detention contrary to Article 5 (4) of the ECHR.[57]Ms. Naik did not seek to contend that the Article 5(4) claim, if permission was granted, could succeed independently of the claim in relation to the claimant's s.4 application. However, in case I am wrong about this, I will deal with the issue briefly.[58]I agree with Mr. Blundell that Article 5(4) has no application in order to obtain a declaration that a previous period of detention is unlawful. The European Commission of Human Rights held in X v. Sweden (1983) 32 DR 302, at 304:
“… The right guaranteed in Article 5(4) is hence only applicable to persons deprived of their liberty. However, Article 5 (4) has no application for the purpose of obtaining, after release, a declaration that a previous detention or arrest was unlawful.”
[59]Furthermore, the focus of Article 5 is the procedure/proceedings by which the legality of detention can be established. A detained person is entitled to a judicial ruling on the lawfulness of his detention (para 109, Zamir v. United Kingdom (1983) 40 DR 42). The means by which the legality of detention is established is by way of judicial review proceedings or an application for a writ of habeas corpus. However, the claimant did not seek a writ of habeas corpus and, whilst he did bring judicial review proceedings, he did not seek expedition of his claim nor has he complained about the speed with which this judicial review claim has been dealt with, a complaint which could not possibly succeed.[60]Ms. Naik submitted that the defendant’s unlawful failure to handle the claimant’s s.4 application meant that he was prevented from presenting “a meaningful bail application” to seek this release. This is no different from saying that he lost a chance to obtain bail. This argument is misconceived for the following reasons.[61]First, whilst the defendant had a power to provide a bail address, she did not have a duty to do so.[62]Second, the caseworker decided to exercise discretion to widen the criteria for the Dispersal Accommodation. This was a matter of discretion. There is nothing to show that the discretion has been exercised unlawfully.[63]Third, I agree with Mr. Blundell that the judgment in R (Faulkner) v. Secretary of State for Justice [2013] UKSC 23, [2013] 2 WLR 1157, does not assist the claimant, as that case concerned the different issue of prisoners serving sentences of imprisonment and delay in Parole Board hearings, and not delays in the handling of the applications for s.4 bail addresses.[64]Fourth, even if the claimant had been given a bail address sooner, there is no assurance of bail being granted by an independent judge of the FtT, given that the judge exercises his or her own original jurisdiction on the merits. Furthermore, the claimant faced significant hurdles in the way of being granted bail, given that he did not have any sureties and given the defendant’s views of his risk of re-offending, risk of harm and risk of absconding. Ms. Naik sought to suggest that the letter from the defendant to the claimant dated 30 August 2011 (para 11 above) shows that the claimant's continued detention was directly linked to the lack of a bail address. I reject this submission. The inference Ms. Naik seeks to draw ignores the fact that a bail address is not the only consideration when bail is considered. If there is no bail address, a decision-maker may well consider it unnecessary to engage with any other considerations.[65]The application to add the remedy of aggravated or exemplary damages is refused because permission is refused on the Article 5 (4) issue. Conclusion[66]The claim is dismissed.