Baraka, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 1549 (Admin)

Case No CO/5952/2017

[2018] EWHC 1549 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 June 2018

Before

RHODRI PRICE LEWIS QC,

SITTING AS A DEPUTY HIGH COURT JUDGE

Between

The Queen (on the application of Molon Baraka)Claimant

Secretary of State for the Home DepartmentDefendant

Carine Patry (instructed by Duncan Lewis) for Claimant

Sarabjit Singh QC (instructed by Government Legal Department) for Defendant

Hearing Hearing date: 5 th June 2018

Judgment

Rhodri Price Lewis QC:

Introduction:

[1]The Claimant seeks to challenge the failure of the Defendant to provide him with accommodation under section 4 of the Immigration and Asylum Act 1999 so as to enable his release on bail from immigration detention. That section provides that "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 of the Immigration Acts."

[2]The Defendant submits that all reasonable steps have been taken to secure such accommodation for the Claimant but that he has been frustrated by the difficulties of obtaining accommodation in this particular case.

[3]Permission to bring this judicial review was granted by Andrew Thomas QC, sitting as a Deputy High Court Judge on the 21st February 2018. He directed an expedited hearing and observed:

"It is acknowledged that the search for accommodation requires the cooperation of the Probation Service in England and/or the equivalent authorities in Scotland. However, the bare fact that the Claimant has been in detention for 10 months awaiting an offer of suitable accommodation gives rise to a prima facie case that the Defendant has not discharged her duty."

The Claimant has now been in detention for nearly 15 months.

[4]The Claimant is 30 years of age and is believed to be a national of Sudan or South Sudan. He made an application for asylum in this country in 2013. Before that claim could be considered by the Defendant he was convicted in Glasgow on the 4th August 2014 of abduction and sexual assault with intent to rape and was sentenced to 4 years' imprisonment. He is on licence until the 6th January 2020 and so by the conditions of his licence any accommodation has to be approved by the probation service.

[5]The Defendant gave the Claimant notice of liability to deportation him on the 21st October 2014 and on the 21st December 2015 the Defendant refused the Claimant's protection and human rights claim and served him with a signed deportation order. On the 8th January 2016 the Claimant appealed against his proposed deportation. His appeal was dismissed by the First-Tier Tribunal (Immigration and Asylum Chamber) on the 6th October 2016 and any rights of appeal became exhausted on the 17th January 2017. The Claimant has been detained under immigration powers since the 29th March 2017. No country has accepted responsibility for him or agreed to provide him with travel documents.

[6]He applied for section 4 accommodation on the 25th April 2017 but none has been provided for him to date.

[7]The Claimant maintains that he had been a victim of torture after being arrested in Sudan in 2008 and taken to prison in Khartoum. On the 27th April 2017 whilst in immigration detention he was examined by a doctor under Detention Centre Rule 35 who completed a body map that indicated the location of scars on the Claimant’s body.

[8]As a person convicted of a sexual offence and on licence the Claimant is subject to MAPPA, meaning Multi Agency Public Protection Arrangements. He has been assessed as MAPPA Risk Level 2 meaning that "it is considered that he poses a high risk of harm to the public due to the nature of his offence and his lack of responsibility taken for his actions”, as is explained in his detention review records.

[9]Following the Claimant's submission of an application for accommodation under section 4 of the 1999 Act, on the 5th May 2017 the Claimant's registered Home Office caseworker in Glasgow carried out an assessment of the Claimant and completed the relevant pro-forma. In that form she confirmed that liaison with the probation service was required in his case. She recorded his offending history and the results of the MAPPA risk assessment that had been carried out on him. She recorded that what is known as "Initial Accommodation" meaning hostel type accommodation with a mixed population was not suitable for the Claimant because he had been assessed by a sex offender criminal justice agency in Glasgow as "posing a high risk of sexual re-conviction" and " a risk to women." She went on to record that he was also not suitable for Standard Dispersal Accommodation for the same reasons. The form asked her to confirm the type of accommodation required. She wrote that a shared room with two people of the same gender sharing with shared kitchen and bathroom facilities was "acceptable as long as the Claimant would have no contact with females in the property." His licence conditions required that he did not associate with sex offenders so he could not be expected to share with any known sex offenders. She went on to record that as the Claimant is under the supervision of the Offender Management Unit in Glasgow he should be given an address in the Glasgow area. She went on to record that "Police Scotland have stated that any property identified would require details to be sent to the SOLO [Sex Offender Liaison Officer] team at the housing social work department at least 5 working days in advance. They will in turn forward the relevant information to the Police scanning department who will carry out further checks."

[10]The Claimant has applied for bail on three occasions. His first application was withdrawn on the 10th October 2017 because no accommodation had been identified for him. Following the withdrawal of the application

the Judge of the First Tier Tribunal to whom it had been made wrote:

" Whilst not in any way seeking to influence any further bail application, I am presently of the view that the risk to the public in granting bail may well be mitigated by the appropriate conditions, such as tagging, curfew and reporting requirements. I am further of the view that the failure of the Probation Service to approve an address after four months, for whatever reason, is indefensible. I am writing this note in the knowledge that it may be used in support of Judicial Review proceedings seeking an order for the approval of a bail address and I am content that it may be produced to the Court."

Bail was refused on the 3rd November 2017, the judge observing that the application "fails in limine because the applicant does not have bail address as his Section 4 address has not been approved by the police." Bail was again refused on the 19th April 2018 when the same judge as heard the first application observed:

" … in view of the seriousness of the applicant's offence, had I granted bail I would have imposed a residence condition and a tagging condition. The applicant cannot provide a bail address and, I am told, has sought one from the respondent. She has not provided one and I am also told that on that subject there are Judicial Review proceedings."

[11]It appears that the Defendant has sourced from the private companies which provide accommodation three potential addresses in which to accommodate the Claimant. The Claimant was informed by letter dated the 14th June 2017 that an address had been sourced but the letter explained that the accommodation needed to be "approved by the Probation Service/ Police". However, it appears that the Claimant's Offender Manager advised on the 15th September 2017 that the address was not suitable. A second address was sourced in Sunderland in October but was seen as unsuitable by the police as it was in Sunderland not Glasgow, as his licence conditions required, and it was level two dispersed accommodation not the complex accommodation the Claimant required. A third address was sourced in Glasgow in February 2018 and the police in Scotland were informed later that month. It was not until the 18th April 2018 that the police advised that the housing association in that area would not cooperate with the police and so the police could not assess the suitability of the property. Further communications passed between the police and the Defendant's representatives. On the 14th May 2018 the police in Scotland emailed in these terms:

" Neither Police Scotland, nor local housing are able to fully risk assess the property, or the surrounding properties in the immediate vicinity due to the transient nature of the persons frequenting these flats and the fact that no details can be provided in relation to the identities of those in surrounding addresses, so we are unable to confirm if it was suitable or unsuitable. However, we would consider the address as MANAGEABLE [sic], as it would be more beneficial for [the Claimant] to be 'housed' than to be of no fixed abode."

The Law:

[12]Section 4(1)(c) of the Immigration and Asylum Act 1999 provides:

“The Secretary of State may provide, or arrange for the provision of, facilities for accommodation of persons – (c) released on bail from detention under any provision of the Immigration Acts.”

Section 4 of the 1999 Act was repealed by the Immigration Act 2016 but the parties are agreed that the Claimant continues to be considered under section 4(1)(c) by reason of transitional provisions.

[13]That provision was considered by Edis J in R (Sathanantham and others) v Secretary of State for the Home Department

[2016] EWHC 1781 (Admin)

and I gratefully adopt from the headnote of that case in the Weekly Law Reports at

[2016] 4 WLR 128

the following summary of his judgment:

“ (1) …the Claimants’ right to liberty was a fundamental one which the courts would protect to ensure that any restrictions were lawful, proportionate and subject to judicial oversight; that, while the functioning of immigration bail was a matter of great importance and the courts should consider with anxious scrutiny the way in which the system worked, section 4(1)(c) of the 1999 Act was not a provision authorising detention which was to be construed with “extreme jealousy” so as to constrain a claim by the state to be entitled to detail the claimants without trial; that, rather, section 4(1) was part of a statutory scheme which included the power to detain and the power to release on bail and the Home Secretary had established a system for its exercise; that the power to provide accommodation in section 4(1)(c) was a power to provide it to those who had been released on bail but there was no entitlement or duty to provide accommodation until the search was successful; that, however, section 4(1)(c) conferred a power coupled with a duty, as the Home Secretary accepted, to determine applications fairly and rationally and to apply relevant policy; that the Home Secretary’s system tried, but failed to offer suitable bail accommodation to the small number of high risk bail applicants within a reasonable period of time; that the policy was neither irrational nor unreasonable but simply not working very well, unintended delay rather than a deliberate decision to delay being the problem and accordingly, the Home Secretary was not under a duty to provide accommodation and her failure to do so was not, of itself unlawful ( post paras 62,64,66-70). But, (2) allowing the claim in part and ordering a further hearing for consideration of appropriate remedies, that the section 4 bail system did not work for high risk offenders and in the case of each claimant there had been unacceptable delay; that the time scales set for herself by the Home Secretary were routinely not met, and missed by substantial margins; that while the Home Secretary’s policy was not unlawful in that respect, the way in which it was operated was unlawful in that failure to determine an application for accommodation within a reasonable period breached the Home Secretary’s duty to determine applications fairly and rationally; that there was no easy way to determine in each case at which point the processing of the section 4 application had gone on so long that it became unlawful and the court was not prepared to hold that an approved address would ever have been offered or that, even if it had, bail would have been granted; and that accordingly, it did not follow that any claimant was detained because of the Home Secretary’s failure to operate her policy fairly and rationally.”

[14]I gratefully and respectfully adopt and endorse those general dicta and observations and I have to determine to what extent they apply to the Claimant’s position.

[15]The relevant policy document considered by Edis J is still the extant policy for criminal casework case officers, such as the case officer who has dealt with the Claimant’s application in this case. That document is entitled “Criminal casework – considering cases for section 4 bail accommodation.” The current version is version 3.0, valid from 3 December 2013. That was the version considered by Edis J: see paragraph [13] of his judgment. It advises at page 2 of 30:

“High risk cases and FNOs [foreign national offenders] subject to Multi Agency Public Protection Arrangements (MAPPA) may be more difficult to accommodate, as the range of suitable accommodation for these offenders is more restricted and therefore provision of accommodation for these subjects may take longer to arrange.”

It explains that there are three types of accommodation: initial, dispersal and complex bail. Initial is not appropriate for some offenders, specifically those subject to MAPPA and/or with a conviction for sexual offences. Standard dispersal accommodation is said to be “not specifically designed for offenders with serious criminal convictions who are granted bail.” It goes on to explain that “ when an offender is assessed as unsuitable for IA and SDA they may be considered for complex bail accommodation (CBA). It explains that “these offenders are often MAPPA cases or high harm offenders.” The Guidance goes on to explain that “There is a very limited supply of CBA and this type of accommodation is more expensive than IA and SDA.” In cases where “an offender has committed a violent, sexual or serious drug offence and/or is managed under MAPPA and/or has licence arrangements which affect their accommodation, in all cases of this type, it is imperative that [the caseworker] gets advice from the offender manager.” Finally it is explained that in 2012 commercial and operational managers procuring asylum support services (“COMPASS”) took over management of the contract for Home Office section 4 accommodation. The new suppliers were Serco in the North West of England, Scotland and Northern Ireland and GS4 in the North East of England, Yorkshire and Humberside, Midlands and East of England. As Edis J explained “these private sector companies have a contractual obligation to secure accommodation and financial incentives to do so within given time limits”, see paragraph [20], although as he went on to point out:

“It is not suggested that this is an inherently unlawful system.”

Submissions: Submissions on behalf of the Claimant:

Submissions:

[16]The one ground of claim pleaded is that the delay in providing accommodation is unlawful and denies the Claimant the ability to seek to apply for and secure bail from the First Tier Tribunal and so the Claimant is unable to seek independent consideration of the appropriateness of his being released into the community. In oral submissions Ms Patry submitted that thereby there was a breach of the Defendant’s own policy and a breach of the Defendant’s duty to determine this application fairly and rationally. She pointed out that although section 4 provided merely a power to provide accommodation, here the Defendant by her actions had accepted that she would provide accommodation and so was under the duty to act fairly and rationally in seeking to provide that accommodation.

[17]She accepted that if this is a case of the Defendant valiantly trying to find accommodation but failing or the delay was attributable to the probation service, then the Defendant has not acted unlawfully. She argued that there are three steps to the carrying out of the duty that the Defendant has accepted. Firstly, she submits that the Defendant must correctly assess what accommodation the Claimant requires in his circumstances. Secondly, the Defendant must seek to source such accommodation by sending appropriate requirements to the relevant provider. Thirdly, the probation service must approve the accommodation put forward by the provider. She submits that the Defendant acted unlawfully in the first two steps. She further submits that in any event the delay here is so egregious as to amount to a breach of the duty to act fairly and she relies on the dicta of Edis J in Sathanantham above to support that submission.

[18]She submitted that here the Defendant had incorrectly assessed what accommodation would be suitable and then sought approval for inherently unsuitable addresses. She submitted that there was a duty on the Defendant to put forward at least potentially appropriate addresses for approval.

[19]She submits that in these circumstances the court should make a mandatory order that the Defendant must within 28 days put forward for approval by the offender management unit complex bail accommodation for the Claimant in single occupancy in Glasgow with liberty to apply to the court to seek any variation of the order.

Submissions on behalf of the Defendant:

[20]Mr Singh QC on behalf of the Defendant submits that the initial assessment here carried out by the caseworker on the 5th May 2017 was reasonable for the circumstances of the Claimant. It was not contrary to the Defendant’s policy or irrational to assess the Claimant as being suitable for shared accommodation with another man. In that assessment he submits that the caseworker was managing the level of risk to an acceptable degree.

[21]He further submits that in those circumstances the addresses put forward were reasonable, given the very limited supply of complex bail accommodation and the particularly stringent requirements necessary for accommodation to be suitable for the Claimant in his particular circumstances.

Discussion:

[22]I accept that the Defendant has accepted the duty to consider the Claimant’s application for accommodation under section 4 fairly and rationally and in accordance with his own policy. The caseworker carried out an assessment of the Claimant and accommodation has been sought from the providers and put forward for approval by the police through the Offender Management Unit and by the probation service. Those actions show that the duty I have described has been accepted.

[23]In my judgment the first step of assessing the Claimant and his needs was carried out reasonably and expeditiously. The Section 4 Bail Accommodation Information Pro-Forma dated the 5th May 2017, within a week of his application for accommodation, has been completed thoroughly and conscientiously by the caseworker setting out the stringent requirements for any accommodation to be suitable. It is a reasonable assessment of the risks that the Claimant poses.

[24]Furthermore, in my judgment that assessment has correctly followed the Defendant’s policy in this area. As Edis J has held, there is nothing unlawful or irrational in the policy adopted. The assessment correctly assesses that only Complex Bail Accommodation would be suitable. However, it is clear that such accommodation may be shared with another person of the same gender. Section 14 of the Pro-Forma expressly contemplates a judgment by the caseworker as to whether “a serious sex offender” can be accommodated in shared accommodation. The caseworker made the judgment that “a shared room is acceptable as long as Mr Baraka would have no contact with females within the property” and “he could not be expected to share with any known sex offenders.” That is a reasonable judgment. It meets the conditions of his licence and it would be unreasonable to expect that there would be no contact with females anywhere.

[25]In forming a judgment as to whether the second step in carrying out the Defendant’s duty of seeking potentially suitable addresses has been taken fairly, rationally and with reasonable expedition it is right to bear in mind that “there is a very limited supply of Complex Bail Accommodation” as the policy guidance document explains. Also to be borne in mind are the further stringent requirements for accommodation to be suitable for the Claimant which stem from his offending history, the risk assessments that have been carried out on him and the conditions that have been set for his licence.

[26]It can be seen from the letter of the 14th June 2017 sent to the Claimant that accommodation had been identified within some 6 weeks of the pro-forma assessment but that accommodation needed to be approved by the police and probation service. It can be seen from the caseworker’s letter to the Claimant’s solicitors dated the 15th September 2017 that it was not until that very date that the Claimant’s offender management unit advised that the accommodation was not suitable and could not be approved. As the caseworker’s letter rightly observed the process of assessing and determining whether an address can be approved “is outwith the control of the caseworker.” This correspondence satisfies me that this was not a “phantom address” as at one stage was suggested by Ms Patry but was a genuine address genuinely put forward for approval or otherwise by the Claimant’s offender management unit. The Claimant’s case records indicate that the main reason this property was not approved was that the police were not able to risk assess other occupants who might be sharing the accommodation.

[27]The next address was put forward in the next month of October but it was in Sunderland and was level two standard accommodation. The Defendant’s officer recorded on the 3rd November 2107 that he was putting it forward as “the best address we can provide given the circumstances.” By the 5th December 2017 the caseworker was recording that “Police Scotland are unable to transfer Mr Barak’s licence conditions to another area therefore any address provided will need to be in the Glasgow area.”

[28]To put forward standard dispersal accommodation for a convicted sex offender such as the Claimant was not in accordance with the Defendant’s own policy but I am not prepared to categorise this effort as irrational given the difficulties of finding suitable accommodation and given that an attempt was made to see if the licence supervision could be transferred. Putting forward this address added to the delay but the delay had not become unreasonable given the stringent requirements and the difficulties of finding an address that met all those requirements. To borrow from Edis J’s analysis, this attempt can more properly be characterised as at worst maladministration or at best over –optimism rather than being unlawful.

[29]The third address put forward is complex bail accommodation albeit with shared occupancy and was identified on the 21st February 2018 and the Defendant then sought police approval. Such approval was sought throughout March and into April. It was not until the 18th April that the police advised that they would need to be able to “assess the risk of those who are residing in surrounding flats and safeguard any vulnerable persons.” They went on to write that “Without details of this, this cannot be done and we cannot make this address suitable for him.” By an email of the 14th May 2018 the police wrote again in these terms:

“Neither Police Scotland nor local housing are able to fully risk assess the property or the surrounding properties in the immediate vicinity due to the transient nature of the persons frequenting these flats and the fact that no details can be provided in relation to the identities of those in surrounding addresses, so we would be unable to confirm if it was suitable. However, we would consider the address as Manageable, as it would be more beneficial for [the Claimant] to be ‘housed’ than to be of no fixed abode.”

[30]As Edis J observed in Sathanantham at [86] in an intractable case the “least worst” option should in certain circumstances be adopted and this final address whilst not meeting all requirements has been assessed now by the police as “manageable”, and without of course my prejudicing or seeking to prejudice in any way any possible further bail application to the First Tier Tribunal, may be the “least worst” option available.

[31]I do not find however that the Defendant’s actions have been unreasonable or irrational or unlawful. The caseworker has properly assessed the risks and following from that assessment has properly identified the kind of accommodation that might be suitable for the Claimant. There was a false step in seeking standard dispersal accommodation away from Glasgow but even that was not irrational in the difficult circumstances here. Most of the delay has been as a result of the police and probation service having to assess the properties and apart from a short period of delay caused by the identification of the Sunderland property the overall delay has not been the fault of the Defendant.

[32]Furthermore, I do not consider that a mandatory order as sought here would be reasonable or helpful. The Defendant is making appropriate efforts to identify suitable accommodation of which there is a very limited supply and as Mr Singh submitted, the Defendant cannot “magic up” such accommodation in 28 days.

[33]I do not find therefore that the Defendant has acted unlawfully or that the delay in providing accommodation has been such as to justify any order. The claim is therefore dismissed.

[34]Documents were provided by the Defendant’s solicitors to the Claimant late in the day but thanks to the efforts of Counsel for the Claimant for which I commend and thank her, the hearing of the claim and its determination have been able to proceed expeditiously. I do not consider that any earlier provision of those documents would have caused the Claim to have been withdrawn given that permission to bring the claim had been granted and given the submissions that have been able to be made to me.

[35]I invite Counsel to draft the appropriate order.