Ademiluyi, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 935 (Admin)

Case No CO/5856/2015Neutral Citation Number: [2017] EWHC (Admin) 935
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 20 January 2017
Strand
London WC2A 2LL
B e f o r e:
MICHAEL FORDHAM QC
(Sitting as a Deputy Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF ADEMILUYIClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr T Emezie, Solicitor Advocate (instructed by DCK Solicitors) appeared for ClaimantMs J Lean (instructed by the Government Legal Department) appeared for Defendant
J U D G M E N T (Approved)THE DEPUTY JUDGE:Introduction
[1]This is a claim for judicial review, brought with the permission of John Howell QC on 18 March 2016. The issue in the case concerns the lawfulness or unlawfulness of immigration detention which took place on and after 26 October 2015. Immigration detention ended with the grant of bail by the learned deputy judge at the permission hearing before him on 18 March 2016.[2]The relevant statutory power which authorises immigration detention in a case such as the present is to be found in section 36(1) of the United Kingdom Borders Act 2007. That provision expressly empowers the Secretary of State to detain in the context of so-called “automatic” deportation of foreign criminals, while consideration is being given to the applicability of section 32(5) and so the exceptions to it in section 33, and thereafter while the Secretary of State is dealing with the making of a deportation order.[3]It is common ground that the “Hardial Singh principles” were applicable to this immigration detention and applicable to it from the start. The Hardial Singh principles are well known and can be found encapsulated in Lord Dyson's judgment in the Supreme Court case of Lumbar [2011] UKSC 12 [2012] 1 AC 245, at paragraph 22. There are four relevant principles and this case centres around principle 3, which I will call "Hardial Singh 3". The Hardial Singh principles are: 1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. 2) The deportee may only be detained for a period that is reasonable in all the circumstances. Then:
"Hardial Singh 3": "
If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect a deportation within a reasonable period he should not seek to exercise the power of detention. Finally: 4. The Secretary of State should act with reasonable diligence and expedition to effect removal."[4]In the absence of Hardial Singh 3, there could be no question of unlawfulness of detention in the present case. If the only requirements were that the Secretary of State must intend to deport and detain for that purpose, must act with reasonable diligence and expedition to effect deportation, and may only detain an individual for a period that is reasonable in all the circumstances, this detention would, in my judgment, plainly be lawful. That is because the claimant was detained during a period which, on any view, would have been a reasonable period within which to seek to effect deportation and there is no evidence of any lack of reasonable diligence or expedition.[5]However, it is vitally important, in my judgment, to appreciate the significance of Hardial Singh 3 and what it brings to the discipline and protection applicable in immigration detention cases. Hardial Singh 3 is a principle which requires consideration to be given prospectively, not to whether the reasonable period within which removal can be effected so as to justify detention has yet expired but rather consideration as to whether it is clear that that period will expire before the Secretary of State will be able to effect any deportation. I say “clear”; the word used by Lord Dyson in paragraph 22 of Lumba is "apparent."[6]In my judgment, from the very start of immigration detention, the legality of that detention will be vitiated in law if it is clear that the Secretary of State will not be able to effect deportation within the relevant reasonable period evaluated in the circumstances of the particular case. The principle of Hardial Singh 3 introduces an important discipline and an important protection in the context of the liberty of the individual.[7]Moreover, the principle of Hardial Singh 3, in my judgment, is one whose application is facilitated in the context of a foreign national prisoner. That is because much as to the circumstances of the individual will be known or readily ascertainable. The Secretary of State will be in a position to consider prior to the end of the relevant custodial term what it is that is envisaged and will be in a position, to a very large extent, in my judgment, to make an informed assessment of Hardial Singh 3. Such cases can be contrasted with other immigration detention scenarios where an individual may be picked up for the first time and arrested, and there needs from a ‘standing start’ to be the gathering of relevant information about them and their case.[8]That is not to say that the Secretary of State will know everything in foreign prisoner cases. It is not to say that there will not be uncertainties or matters that need to be investigated and evaluated. Everything will depend on the particular facts and circumstances of the individual case.[9]In the present case, the claimant had been convicted and sentenced on 30 March 2015. Those convictions involved three criminal offences:(a) Possession and use of a forged British passport.(b) Entering into a sham marriage to avoid the effects of the Immigration Rules.(c) The offence of bigamy, having entered into a marriage in circumstances where he was already married. Each of those offences had a direct relevance to questions regarding immigration control and attempts to avoid the proper application of immigration control.[10]The custodial term was due to end, and known to be due to end, on 26 October 2015 and the Secretary of State prepared for that in a number of ways. Notice of liability to deportation was issued on 2 June 2015. On 7 July 2015, the claimant's residence card, an EU entitlement, arising in connection with the marriage that was the subject of the criminal proceedings and a subsequent divorce from that marriage, was revoked. During that same period of time, moreover, consideration was expressly given to the question of whether the claimant should be placed in immigration detention on, and after, 26 October 2015.[11]The claimant and his legal team had provided the relevant authorities with written submissions on 22 June 2015, in a 14-page letter setting out clearly the basis on which the deportation action which had been notified was said to be contrary to ECHR Article 8. That letter of submissions was accompanied by relevant documents listed at the end of the letter. There was a letter from the claimant's wife, with whom he had been living and with whom he had 5 children. There were letters from the children themselves, there was a letter from the school confirming which of the children were in school.[12]The Secretary of State made a decision in relation to the appropriateness of detention on 13 October 2015. That decision was the subject of a decision letter of that date and the reasoning behind the decision can be seen from a Minute dated 13 October 2015.[13]After entering immigration detention on 26 October 2015, there were various relevant steps which took place. The Secretary of State issued a notice of decision to deport on 6 November 2015. The claimant and his representatives, for their part, filed an application for bail dated 5 November 2015. They wrote a letter requesting that he be released and referring to alternatives and conditions, open to the Secretary of State, also on the 5th November 2015; and they wrote a pre-action letter before claim on 6 November 2015. Hardial Singh 3 was expressly invoked and said to be being breached, among other points that were made. The Secretary of State's position, so far as bail was concerned, was as follows: she opposed bail, having prepared in a bail summary dated 30 October 2015 to do so; with a further bail summary being drawn up dated 12 November 2015.[14]The Secretary of State was successful in opposing bail. The immigration judge, Judge Woodcraft, on 13 November 2015 considered the question of bail and refused it on the grounds that he was satisfied that there are substantial grounds for believing that if granted bail the applicant will abscond. Reference was made to the claimant's bail immigration record and bad criminal record, his use of false documents, deliberate flouting of immigration control and the judge's conclusion was:
"I have no confidence that the appellant [that is the claimant] would answer to bail if released."
[15]Reference was also made by the immigration judge to an appeal, that being an appeal against the revocation of the EEA resident's card. The judge referred to that outstanding appeal due for a hearing (I am told, a case management review), on 7 December 2015, and the immigration judge observed that:
"Subject to the resolution of those proceedings the appellant is removable within a reasonable time."

The Judge then made the following comment, apparently referable to an Article 8 claim:

"The respondent is initiating deportation proceedings against the appellant which may well carry an out of country right of appeal only."
[17]Alongside her opposition to bail, the Secretary of State decided on 10 November 2015 to refuse release on temporary admission with appropriate conditions. The Secretary of State then responded on 18 November 2015 to the pre-action letter before claim. Then on 23 November 2015, there was undertaken the first monthly detention review which was documented with a review report and a monthly progress report dated 25 November 2015. The following day, 26 November 2015, an assessment report entitled "OASys Assessment" was produced. Judicial review proceedings commenced on 2 December 2015.[18]The claimant's case is, and has always been, that this immigration detention was unlawful from the start, 26 October 2015; or alternatively, that maintaining the immigration detention at the date of relevant decisions in November 2015, in particular that the refusal of 10 November and the decision to maintain detention at the review on 23 November were unlawful.[19]At the permission hearing before John Howell QC, the question was ventilated as to whether it would be open to the claimant to rely on events post the commencement of the judicial review proceedings, to mount a secondary argument that even if lawful in October and November 2015, by the time of later decisions, this immigration detention became unlawful. The deputy judge explained that in his view that would need an amendment of the grounds for judicial review and permission of the court. There has been no amendment and it is fair to say the claimant does not seek to mount a secondary argument of that nature. The focus is squarely on the position in October and November 2015.[20]For her part, Ms Lean for the Secretary of State submitted that the other side of that same coin is that it is possible that even if unlawful at the outset there could have been events subsequently which rendered this detention lawful. I have failed to see, either as a matter of logic but more importantly on the particular facts of this case, how that contention could be sustained. It would mean that if unlawful, by reference to Hardial Singh 3 at the outset, this immigration detention did or could have become lawful by reference to some further circumstance. Hearing from the Secretary of State[21]The first issue I had to decide, announcing my decision during the substantive hearing, was whether to allow the Secretary of State to participate in the substantive judicial review at all.[22]The circumstances, so far as relevant pleading documents are concerned, make for discouraging reading. The acknowledgment of service in this case was late. Laing J abridged time for the acknowledgment of service in the light of the claimant's family circumstances and the fact that he was in custody. An application to extend time for the acknowledgment of service was filed before the expiry of the abridged deadline. The upshot was that by an order of Deputy High Court Judge Ben Emmerson QC, the Secretary of State was required to serve her acknowledgment of service and summary grounds by 4pm on 15 January 2016. She failed to do so. I have been told that the order of Mr Emerson did not or may not have come to the attention of those who were dealing with the case but I cannot see how that assists, even leaving aside the need for them to pursue and find out what had happened to their own application for an extension. On the face of it they were out of time, and no extension had been granted from their perspective. But in any event, looking at the matter objectively, the position is that an application was made and an extension was granted but the acknowledgment of service was filed out of time. It was filed on 29 February 2016. The Secretary of State is unable to say that that acknowledgment was filed within the time allowed by the rules or by orders of the court. That has consequences pursuant to Part 54 of the CPR.[23]Moreover, the substantive grounds, the detailed grounds of defence in this case, were also filed out of time under CPR 54.14. Four applications for extensions of time were considered by judges or deputy judges of the High Court and those judges were throughout singularly unimpressed by the position being put forward by the Secretary of State. The matter culminated in an order of Cranston J. On 18 November 2016, he said: "The defendant has made no attempt to explain why it took 6 months to consider advice from counsel or explain why discussion of settlement might justify the enduring casualness that has appeared to have accompany the defence of this claim, particularly given the record of non-compliance to date" [and he made reference to the position as to the summary grounds.][24]What Cranston J ordered was that the Secretary of State's application for an extension of time be refused unless within 7 days of the date of this order the defendant filed submissions fully addressing the relevant case law to satisfy the court that relief from sanction can be justified. He referred to Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633.[25]The Secretary of State and her advisers decided not to take advantage of the opportunity to file those submissions within 7 days. Possibly, they appreciated that it would not be possible to satisfy the court in relation to those principles. I know not, and do not speculate. But the upshot was that they did not have the court's permission for the extension of time sought for the defence that had been filed on 26 October 2016. The course they took was to withdraw reliance on that pleading and instead to seek to rely on the summary grounds.[26]For the claimant, Mr Emezie submits that in these circumstances, the Secretary of State cannot be permitted or should not be permitted to defend the claim as to liability. He raised in his oral submissions the prospect that the court might grant summary judgment in the absence of the Secretary of State being able to defend. I rejected that, at the hearing, as a tenable position in the circumstances of this case. There is before the court no application for summary judgment or judgment in default but even if there were I would not regard that as being an appropriate course. The judicial review court is the guardian of the public interest in public law cases. I recognise that this case is a damages case and would not involve the court making quashing orders, or orders as to declarations, and the consequences would be pecuniary in the award of damages in tort. I also recognise that this is not a case in which there are directly affected interested parties, although the public plainly has an important interest in relation to damages paid from the public purse in the context of detention. Notwithstanding these features it would not, in my judgment, be appropriate or in the public interest for issues such as the legality of the detention in this case to be decided by default and without reference to the legal and factual merits.[27]In my judgment, the true choice for the court in a case such as this would be either(1) to seek to evaluate the legality of the Secretary of State's actions hearing only from one side or alternatively(2) to allow the Secretary of State to assist the court in relation to fact, authority and submission.[28]It may well be that a judicial review court is likely in most cases to feel that it is in an invidious position and to be extremely reluctant to decide public law issues, knowingly shutting out assistance that could be provided by the executive. Apart from anything else, that undermines the court's ability get the right answer.[29]On the other hand, it cannot be the case that the Secretary of State can hold a gun to the head of the court, so far as default with the rules is concerned, knowing that there can be no sanction which goes to the way in which the legal merits of the case are resolved by the court.[30]Furthermore, I can see, by way of example, that if there were a case in which the Secretary of State were seeking to put forward a witness statement to materially add or detract from the position which appears on the face of contemporaneous documents, a court may think long and hard as to whether the Secretary of State would be permitted to adduce such evidence in circumstances of clear default of the rules and directions of the court. That is not, however, this case and no witness statement evidence has been sought to be put forward, nor did Ms Lean seek through submissions to give evidence.[31]In this rather unhappy position, I turn to the rules to see what indications they give. CPR 54.8 provides that a person served with a claim form who wishes to take part in judicial review must file an acknowledgment of service in accordance with the rules. The rules give the time limits, subject to such directions as are given by the court to vary those time limits. In this case, the Secretary of State is in default of that provision. She has not filed an acknowledgment of service in accordance with the relevant rules and directions of the court. CPR 54.9 goes on to deal with the situation where a person served with a claim form has failed to file an acknowledgment of service in accordance with 54.8. There are two relevant provisions: 54.9(1)(a) provides that such a person: "[...](a) may not take part in a hearing to decide whether permission should be given unless the court allows him to do so [...]".[32]That situation does not arise before me. This is not a permission hearing, and so this was a matter for John Howell QC. But it is an important indication as to the need for a party in default to have the court's permission. Secondly, CPR 54.9(1)(b) provides as follows. A person who has failed to file an acknowledgment of service in accordance with CPR 54.8:
"b) provided he complies with rule 54.14 or any other direction of the court regarding the filing and service of – (i) detailed grounds [... may take part in the hearing of the judicial review."
[33]The Secretary of State is unable to invoke that entitlement. She had failed to file an acknowledgment of service in accordance with the rules and directions, and she has not complied with CPR 54.14 time limits and directions of the court regarding the filing of detailed grounds.[34]What follows, in my judgment, is that the Secretary of State has no entitlement to take part in the hearing of the judicial review. The rules therefore expressly contemplate that she may be precluded from taking part in the hearing of the judicial review. It does not follow, in my judgment, that she must be precluded. The rule does not say that she may take part in the hearing, in the circumstances as set out, but not otherwise. Looking at the matter sensibly and reading the rules as a whole, it is clear in my judgment that in this situation what is needed is the permission of the court.[35]Permission was sought and I decided to grant it in the circumstances of this case. I was satisfied that this is a case in which it is in the interests of justice and the public interest, as well as consistent with the overriding objective, for me to have been prepared to allow the Secretary of State orally to assist me in relation to the contemporaneous documents; to assist me as to the implications of those documents; to bring to my attention any relevant passages in any relevant authorities; and to address me on the question of the lawfulness of the detention in this case.[36]In reaching that conclusion, I had regard to CPR 54.9(2), which deals with this situation and provides:
"(2) Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs."
[37]This is a clear indication, specifically in relation to default as to the acknowledgment of service, but equally in my judgment applicable in relation to default as to the detailed grounds, that the court can ‘cut the knot’ by deciding to give permission but on the basis that there are likely to be consequences so far as costs orders are concerned so that, by that means, it can give a clear signal of disapproval and not be left in a position of being powerless to do anything in relation to the record of default. The Secretary of State's approach to the Hardial Singh 3 question[38]One of the key issues arising in this case is whether the Secretary of State asked herself the right question so far as Hardial Singh 3 is concerned. In my judgment, the Hardial Singh principles are intended to introduce not only a yardstick for application in the supervisory jurisdiction by the court, but also a disciplined framework for the decision maker.[39]In my judgment, it is a legally relevant question for the Secretary of State herself to ask, in the context of immigration detention, whether in her judgment - notwithstanding that the reasonable period has yet to expire - it has become apparent that she will not be able to effect deportation within a reasonable time. Where she concludes that it has become apparent she should release the individual.[40]Applying conventional judicial review principles, a failure to ask that relevant question, and a failure to take reasonable steps to acquaint herself with the relevant information to answer it, would be a basis for judicial review. The court could, in principle, quash a decision or grant a declaration of unlawfulness in the Secretary of State’s decision-making. But that would not lead to the conclusion that the detention was itself unlawful. Further questions would need to be asked and answered before that stage were reached.[41]In a case in which the claim is unlawful detention and the practical and effective remedy sought is damages or just satisfaction, it is unlikely that the court will focus on those conventional public law questions and certainly the court will not stop at such questions. In this case, the claimant wishes to establish that the detention was unlawful and seeks damages.[42]In such a case, it does not follow that the question of whether and how the Secretary of State has herself addressed Hardial Singh becomes an irrelevancy before the reviewing court, as I shall come on to explain later.[43]The parties agreed in the present case that the application of Hardial Singh 3 is essentially an objective question for the reviewing court. Ms Lean relied on that as part of her answer to the suggestion that the Secretary of State had failed to ask that question. In essence, she put it in this way. The Secretary of State cannot win a case on the basis that she has asked and answered the question; but nor should she lose a case on the basis of her failure to do so. If the court is satisfied objectively that the detention was compatible with Hardial Singh 3, the claim will fail, whether or not the Secretary of State considered the matter. Conversely, if the court is satisfied that Hardial Singh 3 is breached the claim will succeed whether or not the Secretary of State considered the question.[44]The appropriateness of the Secretary of State asking the Hardial Singh 3 question for herself is supported when one looks in the relevant guidance: chapter 55 of the Enforcement Instructions and Guidance. Paragraph 55.3.1 is headed:
"Factors influencing a decision to detain."
The guidance reads as follows:
"All relevant factors must be taken into account when considering the need for initial or continued detention."
[45]I pause to emphasise the reference there to "initial detention". I read on. The factors listed begin with this:
"What is the likelihood of the person being removed and, if so, after what timescale?"
[46]It seems to me that first listed factor is one which specifically links to Hardial Singh 3 and so the guidance supports the conclusion that there is here an important discipline intended.[47]In giving permission for judicial review, John Howell QC concluded that it was arguable that the Secretary of State had not addressed the Hardial Singh 3 question. He said this:
"Nor is there, so far as I have been able to discern, with the help of counsel who appears for the Secretary of State, any indication that the Secretary of State gave any consideration to whether or not there was a realistic prospect that the claimant could be removed within a reasonable period, given that there might very well be an appeal [...]"

The Judge went on to observe that the immigration judge at the bail application:

"Did not appear to give consideration at that stage to the fact that there were outstanding representations that the children were alleged to be British citizens and that there might be a problem in making a deportation order, or there might be proceedings in respect of whether or not any such deportation, if made, would be lawful or subject to a further appeal [...]"
[49]John Howell QC gave permission, essentially because as he put it, it was:
"Arguable that the Secretary of State failed to have regard to the time within which it might be possible to remove the claimant given [his] outstanding representations on Human Rights grounds."
[50]He went on to observe that the Secretary of State might file evidence in this case which showed that the question was considered. As I have explained, no witness evidence has been filed or is relied on.[51]In my judgment, a consequence of the Secretary of State asking for herself the Hardial Singh 3 question, particularly if a reasoned judgment is formed by her, is that it may be appropriate for the reviewing court to recognise a latitude on her part for the exercise of such a judgment by her, within a discretionary area of judgment. That does not detract from the value of Hardial Singh principles as objective standards for the reviewing court. But if the Secretary of State asks a relevant question and forms an informed and reasoned judgment in relation to it, it may be that this will acquire some weight of entitlement to be afforded appropriate respect, when the court is evaluating the facts and circumstances. That, however, is quite impossible in a case in which the Secretary of State has failed to ask and answer the relevant question. Even then, there may be certain relevant factors which she has addressed, such as the weight that she gives to a risk of absconding for example.[52]I turn to consider whether in this case the Secretary of State can be said to have addressed Hardial Singh 3.[53]Ms Lean, in her helpful submissions, accepted that no document in terms addresses the Hardial Singh 3 question. In my judgment, she was right to accept that. She drew my attention to the minute of 13 October 2015. That minute importantly acknowledges that outstanding barriers to deportation include family split and deportation decision. It is a document which specifically refers to section 55 of the Borders, Citizenship and Immigration Act 2009 and the interests of children. It refers to the claimant as having 5 United Kingdom-born children under 18, residing in the United Kingdom, granted British citizenship by default. But nothing in that document, in my judgment, begins to grapple with the question that arises under Hardial Singh 3: the prospects, so far as timescale for deportation; the question of whether that would be within a period which would be a reasonable period in all the circumstances of the case; and whether the position is clear.[54]Ms Lean also invited my attention to the detention review document of 24 November 2015. That review described the claimant's marriage, described their 5 UK-born children with British citizenship and described various steps being taken. Those steps included a referral to local children's services for information about the children, and an email to the Tribunal to request the deportation appeal to be heard together with the EEA appeal. The review also made reference to the CMC hearing as being a few weeks away in the EEA appeal and it recorded:
"We will be ready to remove pretty quickly post-appeal, given the existence of his passport."
[55]In my judgment, that document too contains no passage which indicates that the Hardial Singh 3 principle has been applied. No answer is given to it, nor the reasons for that answer. In both of the documents to which I have referred, the Secretary of State decides to detain on the basis that the risk of absconding harm and re-offending outweigh the presumption in favour of release. Nowhere in any key document, indeed nowhere in any document in October or November 2015, can I find any material which shows the Secretary of State asking the Hardial Singh 3 question.[56]As I have already explained, the Secretary of State submits and accepts that it is essentially for the reviewing court to consider objectively the Hardial Singh 3 principle, applied to the facts of this case. She emphasises, in my judgment correctly, that looking at that question objectively nevertheless involves considering the facts as they presented themselves to the Secretary of State. Moreover, she submits, again in my judgment correctly, that there is no room for hindsight or reliance on later events in evaluating the application at the outset of the detention of Hardial Singh 3.[57]My attention was drawn to paragraph 103 of Lumba, in which the application of Hardial Singh 3 is specifically addressed by Lord Dyson. Lord Dyson said this:
"103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place [...] [T]here may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful."
[58]My attention was also drawn to the case of Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, in particular at paragraphs 36, 42 and 43. The judgment described the submissions of the Secretary of State at paragraph 36, including this phrase:
"36. [...] the judge had failed to make an objective assessment of the facts as they appeared to those acting for the Secretary of State at the time, but had applied his own subjective views with the benefit of hindsight [...]"
[59]I pause to emphasise “objective assessment” and “the facts as they appeared to those acting for the Secretary of State”. Lord Thomas in Fardous then went on himself to deal with the function of the court at paragraph 42. His heading was "The Objective Review by the Court." He cited authority in the Administrative Court, in which a case called R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin), at paragraph 105. There, Sales J described the court as "the judge of whether reasonable grounds for detention existed at any particular point in time", making that assessment by reference to the circumstances as they presented themselves to the Secretary of State. Lord Thomas CJ went on at paragraph 43 to describe the:
"43. [...] objective approach of the court which reviews the evidence available at the time that removes any question that the period of detention can be viewed as arbitrary in terms of Article 5 of the European Convention on Human Rights."
[60]In this particular case, there is one particular issue which, in my judgment, illustrates the significance that could have arisen from the Secretary of State asking and answering the Hardial Singh 3 question for herself. The Secretary of State as the arm of the executive has certain powers of certification in the context of removal or deportation and human rights claims. Those certification decisions are themselves amenable to judicial review. They may have the consequence that an appeal against the certified decision is an out of country appeal, but there is then a judicial review of the certificate. That prospect is a potentially relevant feature – as indeed the bail judge here recognised – in circumstances where it is known that a deportation action will be resisted on human rights grounds, as in this case.[61]The Secretary of State would, as it seems to me, be entitled to address her mind to her certification power, the threshold for it and the discretion wo which it gives rise, where that threshold is satisfied. In this case, the Secretary of State did not address that question. She cannot, in my judgment, in this case put forward the prospect of certification as being a matter that would support a conclusion that a speedy removal was on the cards. Nor, it is fair to say, did Ms Lean for the Secretary of State seek to put forward that factor in that way. This did not feature in the list of factors which she gave me in her submissions, which she submitted would support a conclusion in the Secretary of State's favour, so far as Hardial Singh 3 is concerned. In my judgment, properly in the circumstances of this case, she treated it as at best a neutral matter. In any event, in my judgment such indications as there are in this case support this conclusion: that it could not be said that this was a case in which it was envisaged, or would have been envisaged, that there would be certification, still less that certification would realistically have led to the speedy removal of the claimant without the ventilation of his Article 8 rights. Analysing the Hardial Singh 3 question[62]For all the reasons I have explained, the questions becomes these. Viewed objectively and on the facts as they presented themselves to the Secretary of State at the relevant time, was there or was there not a realistic prospect of deportation during a time which in all the circumstances of this case would be a reasonable time? Was it sufficiently clear that no realistic prospect of that kind arose such that the Secretary of State should have released rather than detained?[63]I have already referred to paragraph 103 of Lumba. In my formulation, the language “clear" and the phrase "no realistic prospect" is language that I have taken from Lord Dyson's exposition in that paragraph.[64]In the passage that follows, Lord Dyson explains (by reference to previous authority) what factors in particular will inform the question of what is a reasonable time to effect removal where one is considering the legality of immigration detention. Those factors go to this question: when, at what point, will the reasonable period have expired?[65]At paragraph 104 of Lumba, citing paragraph 48 of a case called R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 [2003] INLR 196 paragraph 48, Lord Dyson says this:
"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 [...] 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."
[66]In the passages that follow, Lord Dyson goes on to address how one should approach the passing of time which has been, or in this case would be, spent in pursuant of legal challenges. In particular, Lord Dyson identifies as relevant the question of whether such a challenge would fall to be characterised as ‘hopeless’, in which case minimal weight should be given to a period which is attributable to its pursuit; or, on the other hand, whether it could be ought to be characterised as ‘meritorious’, in which case much more weight would be given to such a period. In those respects, see paragraphs 120 and 121. Plainly, there will be cases in the middle and there will be a spectrum. Therefore the weight will vary accordingly. But in principle it is legally relevant to consider how the posited human rights appeal or challenge falls to be characterised.[67]The relevance to the reasonableness of the period of an appeal is something to which reference is also made in other authorities. I was shown on this point a passage referable to the Secretary of State's policy guidance in paragraph 32(2) of Tarakhil v The Home Office [2015] EWHC 2845.[68]I ought to add while dealing with Lumba that Lord Dyson at paragraph 118 also explained the limitations, so far as Hardial Singh principles are concerned, of bail materials and bail decisions. That is relevant in the present case, where the immigration judge made observations in refusing bail. As Lord Dyson explained, there is nothing in the statutory provisions which requires the Tribunal to apply the Hardial Singh principles when deciding whether or not to grant bail and, in particular, to have regard to past and likely future length of a detention.[69]Returning to the nub of the matter – the objective application of Hardial Singh 3 – the Secretary of State submitted, through Ms Lean, that this is a case in which no breach of that principle took place. She particularly emphasised the following points. This was only the beginning of immigration detention, the early stages. Section 36 of the 2007 Act expressly authorises such detention. There was, on the facts and circumstances at the time, as they appeared to the Secretary of State, an expressly evaluated abscond risk and re-offending risk. Those matters were questions that the Secretary of State addressed and at that stage, in the absence of further evaluative reports, both of those risks were assessed, and properly assessed, as 'medium'. Ms Lean reminds me that the immigration judge agreed with the assessment of the abscond risk. Ms Lean also relies in that regard on the nature of the three criminal offences. They are linked to immigration control, and the proper description of the claimant as highly deceptive, who had shown himself to have taken sustained steps to manipulate the application of immigration control. Ms Lean submits that those are matters worthy of very considerable weight and which inform the question of what a reasonable period of time would be. She further emphasised that the Secretary of State could and would keep the matter under review; could and would explore alternatives; and could and would be able to make enquiries, elicit information and consider possible steps to accelerate any relevant process. Ms Lean gave examples of information that might be elicited, more information about the children and the claimant's relationship with them; how many of them, in fact, were Britain citizens and she emphasised that this was not a case where there was any other barrier to removal such as relating to travel documents.[70]Cases like the present case are necessarily intensively fact specific. I am not persuaded, by reference to these matters or the other circumstances of the case, that applying the Hardial Singh 3 principle objectively to the facts as they appeared to the Secretary of State, this was detention compatible with that principle and protection.[71]Rather, I am persuaded by Mr Emezie for the claimant that this is a case in which it was apparent and indeed clear and should have been to the Secretary of State, had she asked the relevant question, that there could not be a removal within a period of time that was reasonable in all the circumstances such as to justify ongoing immigration detention. Of particular relevance, in my judgment, are the following points.[72]Ample information was already available to the Secretary of State and had specifically been provided to the Secretary of State on 22 June that: this was a man who was married; who was still together in a marital relationship; and who had been living prior to his custody with his wife and family at an address in Welwyn Garden City. That indeed was the address that the Secretary of State herself was prepared to recognise for the purposes of any bail conditions. There was ample evidence that there were 5 children, ages 2 to 10, who were the children of husband and wife. There was information from the wife, and indeed information from the children and about the children, including from their school. In my judgment, nothing can turn on the number, whether it was two, or three, or five of the children who had British citizenship. The fact is that this was a family unit and there were children of the family who were known or recognised by the Secretary of State as having British citizenship.[73]It was also, in my judgment, crystal clear that deportation would be being resisted in this case on the basis of Article 8 with relevant legal rights being invoked and pursued. The claimant had already filed an appeal in relation to the EEA issue, the revocation of the resident's card, and there were very clear submissions on Article 8 in the context of deportation. Those submissions continued into November with the letter before claim and continued in the context of the issue of detention itself, Hardial Singh 3 expressly being invoked by the time of the letters being written in early November. But in any event, as I have explained, Hardial Singh 3 was a principle that was plainly engaged and relevant from the outset.[74]It was known to the Secretary of State that the claimant had been present in the United Kingdom for 15 years and that all five of the children had been born here. It was inevitable that there would be consequential challenges and, in my judgment, those could not properly have been characterised as unmeritorious. Quite the contrary. On the facts and circumstances of this case and, in particular, the effect on the 5 children the implications of family rupture or uprooting of 5 children in education, at least some of whom had British citizenship, if anything that was to be characterised as a meritorious appeal. In adopting that characterisation, I say nothing of course to foreclose or predict the outcome of the human rights proceedings in this case as and when they come to be resolved.[75]The Secretary of State, in my judgment, was well able to make an informed decision in relation to detention in the light of the points that have been raised and in the light of what was already known by her.[76]Ultimately, what she did, as I have explained, was to conclude that detention was justified by reference to the abscond or re-offending risk. But had she evaluated the nature of the barrier to removal that Article 8 and Article 8 proceedings necessarily and inevitably engaged; and had she evaluated the question of what would be a reasonable time and whether there was a realistic prospect that removal could be effected within that time, the objectively reasonable conclusion, in my judgment, that would have been arrived at was that removal would not be possible within such a period.[77]Put another way, this is a case in which it was inevitable that at some stage the claimant would need to be released on the ground that the reasonable time had expired. That expiry of a reasonable time, as I have explained, would be informed by the length of detention to that date; the impact of it; diligence by the Secretary of State; how any legal challenges was characterised and the ongoing weight given to absconding or re-offending risks. But it being clear and inevitable that there would come a time in which release would be necessary pursuant to Hardial Singh principle 2, it follows in my judgment that when the Hardial Singh 3 question fell to be asked, the answer was clear: there is no realistic prospect that removal would take place before that period would have expired.[78]I entirely accept that abscond risk and re-offend danger are matters which are relevant in informing the reasonableness of the period in the circumstances of the individual case. It is, however, important that they are not regarded as being in the nature of a “trump card” and the courts have said as much in Fardous at paragraph 46 and in the case of R (Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) at paragraph 90. Naturally, issues such as the risk of absconding or the risk of re-offending will inform questions as to the alternatives to detention and questions such as what conditions can properly be imposed in relation to any decision to release.[79]As I emphasised at the start of this judgment, the position would be otherwise if the law were otherwise: if the Secretary of State were entitled to detain during the period that would be a reasonable time for removal. But that is not the law. Hardial Singh principle 3, which is very clear, is an additional protection which introduces the discipline that I have described, in circumstances where the liberty of the individual is at stake. "Just the beginning"[80]An issue which crystallised in the helpful submissions of Ms Lean for the Secretary of State in this case, concerned the emphasis which she laid on the fact that this was ‘just the beginning’, being the early stages of immigration detention.[81]In that regard, Ms Lean emphasised that relevant factors so far as the reasonable period are concerned include the length of detention to date, see Lumba at paragraph 104. My attention was also invited to R (ZA (Iraq)) v Secretary of State for the Home Department [2015] EWCA Civ 168.[82]Ms Lean is right, the length of detention to date is a factor which informs the duration of the reasonable period and its expiry. Where one is at or near the start of the period of immigration detention, by definition the length of detention to date is 'zero’ or very short.[83]I also accept Ms Lean's submission that in looking at the length of detention to date, the court focuses primarily on immigration detention, rather than prior imprisonment. As it seems to me that must be right in principle. That is not least for this reason. The function of the length of the period which has already elapsed, in immigration detention to effect removal, is that it colours any conclusion as to whether and what further time can be reasonable, to detain in order to effect removal. That will clearly arise in cases where steps are being taken to effect or expedite removal and the picture emerges as to their progress and whether they are likely to succeed.[84]Ms Lean also emphasised the 'just the beginning' nature of the immigration detention so far as abscond risk and reoffend danger were concerned. Her submission was that abscond and reoffend risk are matters which have more weight in relation to the reasonableness of the period at the start. She cited Fardous paragraph 23 in support of that proposition, where reference is made to risk of absconding, as something which:
"Might justify a detention up to a point."
I accept that abscond-risk and reoffend-risk are matters which can properly be regarded as more weighty at the beginning of detention, and less weighty as detention goes on, when one is consider considering what is reasonable as a period in all the circumstances.[85]In my judgment, however, these submissions on ‘just the beginning’ provide no answer to the application of Hardial Singh 3, when one is considering a position at the start of detention. The question in such a case is not whether the reasonable period has now expired. That question is the application of Hardial Singh 2. The question under Hardial Singh 3 is whether it is already clear that by a future date, in which a reasonable period will have expired, the Secretary of State will not have been able to effect removal. Hardial Singh 3 projects forward to a period which will expire at some at a stage in the future.[86]Therefore, in my judgment, it misses the point to invoke the weight that would be given to factors that go to the question of whether the period has yet expired or not yet expired. The question, as I have emphasised, under Hardial Singh 3 is forward-looking. The weight to be given to such matters, the ongoing length of detention and any reduced weight to be given to abscond or re-offend risk would be part of the balance when the question would arise at a future stage as to whether the reasonable period has then expired. By then, of course, it will not be ‘just the beginning’.[87]So, what Hardial Singh 3 requires is this question to be grappled with, at the start: is this a case where there is a realistic prospect that the Secretary of State will be able to effect removal before such time as the reasonable period will have expired? Or is it clear that there is not?[88]What I readily accept, in relation to ‘just the beginning’ of immigration detention and Hardial Singh 3, is this. At the outset of immigration detention, the picture may be insufficiently clear. It may need further investigation. It may be appropriate for action to be taken and it may be that the position in relation Hardial Singh 3 will only crystallise at some later point at which those investigations or actions have taken place. I would go further. I would accept that in general terms a cautious or precautionary approach is appropriate in relation to the application of Hardial Singh 3, and particularly at the beginning of detention where one is engaging in a predictive evaluation. That is why it is appropriate, indeed necessary, that if it is the case that detention is unjustifiable the picture should be a clear one.[89]In my judgment, in this case, viewed objectively, the picture was a clear one. In my judgment, this was detention which was unjustifiable from its outset on 26 October 2015, in all the circumstances of this case.[90]I have considered the position, even if it were right that abscond risk or danger of reoffending were matters to be given a particular weight where one is considering the reasonable period prospectively at ‘the beginning’ in the application of Hardial Singh 3. Even giving those matters additional weight, for that reason, my conclusion would be the same.[91]Finally, if I were wrong about the unlawfulness of detention as at 26 October 2015, then in my judgment, by 23 November 2015, it ought to have been clear on the facts as they were and appeared to the Secretary of State that this was a case in which Hardial Singh 3 was violated.[92]For all of those reasons, this claim for judicial review succeeds.[93]That leaves a number of points with which I should deal. Firstly, I do not accept the distinct point that was ventilated by the claimant, in relation to Hardial Singh 3, so far as the EEA appeal and its pursuit is concerned.[94]Nor do I accept his distinct point in relation to failure to consider alternatives. In my judgment, alternatives were raised by the claimant on the 5 November 2015 and were considered by the Secretary of State on 10 November 2015.[95]What is left is the question of quantum of damages, which I anticipate will be a matter for directions. I have not heard any argument relevant to quantum of damages or just satisfaction.[96]I will now deal with any consequential matters, including any question of costs, having already explained in my judgment that implications for cost orders arise in principle from the position regarding default in the filing of acknowledgment of service and detailed grounds of defence.[97]MR EMEZIE: My Lord, I am very grateful for the judgment. I only have one application to make and those instructing me. They are that the claimant wishes to apply for indemnity costs against the defendant, given the failings and the way that the defendant is proceeding from the start to finish.[98]THE DEPUTY JUDGE: Yes.[99]MR EMEZIE: There were numerous breaches of several directions of court orders and we say that there is no reason why the claimant should suffer in the consequences by not being able to recover his full costs.[100]THE DEPUTY JUDGE: Yes. Do you say that is the only way that I can really give effect to CPR 54.9(2) in a case where the claimant succeeds?[101]MR EMEZIE: Indeed, my Lord, because the claimant's costs would follow the events, ordinarily.[102]THE DEPUTY JUDGE: All right.[103]MR EMEZIE: Because we have succeeded, but, in addition, I want the court to show a clear disapproval.[104]THE DEPUTY JUDGE: You say you should get all your costs, yes.[105]MR EMEZIE: Thank you, my Lord. I am grateful.[106]THE DEPUTY JUDGE: Thank you. Ms Lean?[107]MS LEAN: My Lord, I certainly do not dispute that costs should follow the event. Nor do I, just for clarity, to think that there is any point at all on the applications for interim relief because we accept that those applications for those hearings would form part of that costs order.[108]THE DEPUTY JUDGE: Yes.[109]MS LEAN: On the cost sanctions, my Lord, I do not have, I am afraid, instructions to accede to an application for costs on the indemnity basis.[110]THE DEPUTY JUDGE: No.[111]MS LEAN: I do note the criticisms that have been made of the Secretary of State's conduct. I think all I can put forward in defence is to say the Secretary of State will respect that this is not a case where the claimant should have been unduly prejudiced by the issues.[112]THE DEPUTY JUDGE: Yes.[113]MS LEAN: Floating around, due to late filing, they did have the defence and the documents from prior to the oral permission hearing and so there have not been additional costs wasted.[114]I accept that some costs may fall to be paid, for example in respect of their resisting our application for extension of time. I would say in the circumstances, perhaps having regard to that as well, there has now of course been complete compliance by the claimant with their own obligations, which has caused some difficulties; for example, the very late filing of the hearing bundle and the very late notification. In fact the skeleton not being provided and the very late notification that they were pursuing the case at the hearing that we should be precluded from being heard. I would say, on balance, in the circumstances of this case --[115]THE DEPUTY JUDGE: You say it should be the usual order.[116]MS LEAN: I would say it should be the usual order, costs on the standard basis and that the court may reasonably take the view that its disapproval of the Secretary of State's non-compliance has been adequately and appropriately expressed through the detailed disapproval that has been expressed in your judgment.[117]THE DEPUTY JUDGE: Yes, thank you. Anything else arising as a consequential?[118]MR EMEZIE: No, my Lord.[119]MS LEAN: No, my Lord. My Lord, in terms of consequentials, I am just conscious that you asked about directions for quantum.[120]THE DEPUTY JUDGE: Yes.[121]MS LEAN: I have spoken briefly to my learned friend and would suggest that this would be a case where quantum can easily be dealt with by written submissions. I think we are only arguing about quantum of basic damages, there has been no application for any other form of damages.[122]THE DEPUTY JUDGE: Is it usual to transfer to the County Court? I have certainly seen it done.[123]MS LEAN: My Lord, I think -- I know that it is often transferred to the County Court at an earlier stage.[124]THE DEPUTY JUDGE: I have also seen it done for quantum but it may not be any case in this bundle of authorities. Anyway, your position is it should stay in the High Court.[125]MS LEAN: My position is it should stay in the High Court.[126]THE DEPUTY JUDGE: Written submissions.[127]MS LEAN: Written submissions, only because you have already engaged fully with the factual background of the case.[128]THE DEPUTY JUDGE: Yes.[129]MS LEAN: So I think that is why I would say at this stage it is probably more appropriate to be dealt with if possible by yourself on written submissions. I was going to suggest 14 days/ 7 days. I think my learned friend would like to ask for 21 days in the first instance for his submission.[130]THE DEPUTY JUDGE: Well, I do not think I can reserve it to myself. I am not booked in to sit. So I think you have to proceed on the basis that it is likely to be someone else and so I do not know if that makes a difference, if it is still dealt with in writing.[131]MS LEAN: I think, my Lord, it will probably still be dealt with in writing.[132]THE DEPUTY JUDGE: Yes.[133]MS LEAN: The only thing I wonder, then, is it might be sensible to set the timeline by reference to making sure that a transcript of your judgment is available to whoever is determining the question of quantum.[134]THE DEPUTY JUDGE: Yes. What is your position on whether quantum can be dealt with in writing, if not agreed.[135]MR EMEZIE: My Lord, your Lordship was right when you dictated that usually in practice these days, they are usually sent to the County Court for the issue of the notice to be dealt with.[136]The last one I did, I did at the Central London County Court and this authority from this court that says that whenever there is a determination on the quantum issue the rest is to go to the County Court for --[137]THE DEPUTY JUDGE: Can you give me that authority?[138]MR EMEZIE: My Lord, I do not have it off the top of my head but I have referred to it on several occasions myself.[139]THE DEPUTY JUDGE: I wonder if we should do this then. Unless the Secretary of State is content with transfer to the County Court, I am concerned that there might be something that says that is what should happen and I do not want to defy that if it exists, but you may not be in a position to help me. So I could direct submissions in writing as to how quantum should be dealt with in this case.[140]I just do not want to clog up another judge with a lot of paperwork that is not necessary. I would rather grasp the nettle and actually make a direction about how it is going to be disposed of.[141]MR EMEZIE: Alternatively, my Lord, if I am given 10 minutes I could find the authority. I have it.[142]MS LEAN: My Lord, I apologise. I was just turning round to ask. I would hope that we would be in a position to confirm by 4 o'clock today whether we were content with transfer to the County Court.[143]Particularly if that is the practice, I would need to go away and check that position myself, I am afraid; because then that might make the position easier, obviously if that is the practice, or even if it is not the practice, my client is content with that then I imagine the order could state it be transferred to the County Court but failing that, perhaps it would have to be submissions to --[144]THE DEPUTY JUDGE: How about this: transferred to the County Court, unless within 7 days the Secretary of State notifies the court of objection, together with reasons, in which case the claimant to have 7 days to respond and the issue of directions to be dealt with on the papers.[145]That means presumptively it is going to the County Court. You will both be able to check it out and liaise and then you will be able to come back and say what your position is. It may be that even there is no case that says it should happen you will agree with it, it may be you will say no, but that would be a mechanism that would then allow that to be dealt with. Would that be suitable?[146]MS LEAN: My Lord, yes.[147]THE DEPUTY JUDGE: Is that sensible?[148]MR EMEZIE: Indeed.[149]THE DEPUTY JUDGE: All right. So far as quantum is concerned, I am going to make the following directions. The quantum of damages in this case be transferred to the Central London County Court for determination if not agreed; unless within 7 days of today the Secretary of State notifies the Administrative Court and the claimant of a reasoned objection to that course, in which case the claimant shall have 7 days thereafter to reply and the question of directions will be dealt with by a judge on the papers.[150]So far as costs is concerned, I am going to direct that the claimant have costs of this case on an indemnity basis. That is not a punishment, in the sense that indemnity costs are not a bonus. They are simply the recovery of the full costs that the claimant has incurred. It is therefore full recompense for the legal cost, nothing more, but nothing less, that to include all stages of this case.[151]In my judgment, that is the appropriate course having regard to the overriding objective and in particular, the concerns that I raised in the judgment, the position that the court is placed in, and the clear indication in CPR 54.(9)(2), as to the court taking failures into account when deciding what order to take about costs.[152]The only choice, in my judgment, that a court properly has in circumstances where the claimant has succeeded, and is in any event entitled to costs, would be to consider indemnity costs. It is a matter for my discretion and judgment as to whether that is appropriate. Notwithstanding questions of whether there was particular prejudice and whether there are steps that could have been taken or done differently on the claimant's side, in my judgment, the particular issues regarding time limits and court orders and pleadings by the Secretary of State, in a case where I did accede to the request that the Secretary of State be heard, is that the claimant ought to have his full costs of these proceedings in which he has succeeded. Costs on an indemnity basis.[153]Will you please draw up a minute of order and there is no application for permission to appeal.[154]MS LEAN: No, my Lord.[155]THE DEPUTY JUDGE: Well, anything else I need to deal with or clarify? (No vocal response from counsel)[156]May I thank you all, counsel and solicitors, for the way in which you have conducted and prepared and presented this case and for the assistance that I have derived from your submissions. Thank you very much.

Cited in 7 later judgments