Diop, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 1934 (Admin)

[2018] EWHC 1934 (Admin)Case No CO/5657/2017
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 July 2018
Before
DAVID PITTAWAY QCSITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Between
THE QUEEN on the application of AMETH DIOPClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Mr Anthony Vaughan (instructed by Leigh Day) for ClaimantMr Eric Metcalfe (instructed by Government Legal Department) for DefendantHearing Hearing date: 13 June 2018
Judgment ApprovedDAVID PITTAWAY QC :
[1]By a claim form issued on 5 December 2017, the claimant challenges the defendant’s delay in providing him with bail accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999. He alleges unlawful detention from 10 November 2017. Suitable accommodation was notified for the claimant on 1 December 2017, offered to him on 5 December 2017 and he was released from detention on 7 December 2017. Permission to proceed with the claim was granted by John Howell QC, sitting as a deputy High Court Judge, on 5 February 2018.[2]There is a full chronology in the Summary Grounds of Defence. The claimant is a national of Senegal. He first arrived in the UK on 8 December 2010 with entry clearance as the dependent of his British spouse Mrs Summerhill whom he had met in Spain whilst she was on holiday. That leave was extended and expired on 1 June 2012. Mrs Summerhill gave birth to their daughter and son, respectively, on 20 May 2010 and 3 September 2013. On 18 December 2012 the claimant applied for an EEA residence card on the basis of his relationship with Mrs Summerhill, which was refused on 6 June 2013. He became appeal rights exhausted in respect of that appeal on 23 March 2013. He has been convicted of eight serious and violent criminal offences, all relating to domestic violence. Two of those assaults had been in the presence of children. In November 2013 he was convicted of assault and vandalism and sentenced to two months imprisonment. His victim was Ms Summerhill’s mother. On 4 March 2015 he was convicted of assault and domestic abuse and sentenced to eight months imprisonment. His victim was a former partner. On 10 November 2015 he was convicted of hamesucken, assaulting a person in their own house, and he was sentenced to 22 months and 18 days imprisonment. His victim was a former partner and the assault occurred in front of her daughter.[3]On 10 December 2015 the claimant was served with a decision to deport him under section 32(5) of the UK Borders Act 2007. He submitted representations against deportation on the basis of the relationship he had with his two children. The decision was certified on 28 July 2015. He lodged an out of time appeal on 8 August 2016 which was dismissed on 8 February 2017. Before the claimant finished his custodial sentence, the defendant made an application for an emergency travel document on 9 August 2016, with his expired passport as supporting evidence. The claimant refused to attend the embassy for an interview on 18 August 2016.[4]On 11 October 2016 the claimant made a section 4 request for bail accommodation. The section 4 bail team contacted criminal casework who completed and submitted the section 4 bail accommodation information proforma. He was assessed as being at high risk of re-offending and of causing serious harm. On 14 October 2016 the section 4 bail team and criminal casework considered that whilst his prior offences did not automatically categorise him as level 3, his pre-disposition to assault his peers and cell mates within the custodial environment led to a real risk of harm to those who might reside in close proximity to him. Accordingly, shared facilities were not considered appropriate. On 20 October 2016 the section 4 bail team submitted to the accommodation provider that he required level 3 self-contained accommodation. A response by 2 November 2016 was requested. The claimants legal team sent a pre-action protocol letter, challenging the defendant’s delay in providing a bail address, on 9 March 2017, which elicited a response on 22 March 2017 that there was difficulty obtaining suitable accommodation. There is nothing in the records to indicate that the application was expedited or that a request was made for it to be expedited by the defendant, contrary to the suggestion in the defendant’s response of 22 March 2017.[5]Meanwhile, on 8 February 2017 the claimant applied for asylum based on his fear of persecution following his recent conversion to Christianity. He was interviewed on 13 March and 8 May 2017. He was served with his asylum refusal letter on 15 May 2017. He was refused permission to appeal to the FTT on 5 July 2017. He became appeal rights exhausted on 28 September 2017. Further applications for section 4 bail accommodation were made on 29 June and 14 August 2017. It was not until 4 September that the defendant sent an email chasing the accommodation provider, followed by further emails on 11 September 2017 and 14 October 2017. On 1 November 2017 the claimant’s first bail application was made by Bail for Immigration Detainees (BID), a charity acting on his behalf. On 2 November the Detention Review considered that continued detention was proportionate. On 3 November 2017, the Senegalese Embassy wrote to BID stating that they were not willing to provide an emergency travel document to the Claimant. On 9 November 2017 the Senegalese Embassy refused to issue an emergency travel document. On 10 November 2017 the claimant was granted bail in principle subject to suitable accommodation being obtained within a 14 day window. The search for accommodation was not escalated until 24 November 2017. The bail application was relisted by FTT on 27 November 2017. On 1 December 2017 the FTT extended grant of bail on the same terms as before with a new 14 day window for accommodation to be found for the Claimant.[6]Section 4(1)(c) of the Immigration and Asylum Act 1999 confers a power on the defendant to provide accommodation to persons released on bail. Under the defendant’s policy, “Asylum Support, Section 4 Policy and Process, version 7 (“the Section 4 policy”) at paragraphs 5.4-5.5, a person is eligible for bail accommodation under section 4(1)(c) if they are detained, intend to apply for bail and would be destitute upon release; and the defendant can find suitable accommodation.[7]The defendant’s guidance Home Office, (July 2014), ‘Section 4 bail accommodation’, Version10.0, Section 18: Section 4 Bail Address Applications by Applicants states:
“Bail accommodation is provided in the form of Initial Accommodation with shared facilities (followed by a move to dispersal accommodation within a couple of weeks), Standard Dispersal Accommodation which is self-contained to a greater or lesser degree, or Complex (bespoke) Bail Accommodation. Section 4 (1)(c) support can be refused by the Home Office where the cost of sourcing bespoke accommodation in any one case is considered too high, and such a refusal attracts a right of appeal to the Asylum Support Tribunal. If a detained applicant for Section 4 bail accommodation has been convicted of a criminal offence, at an early stage in the application process Home Office staff are required to determine the nature of the offence, make enquiries of the National Offender Management Service (NOMS) and IRC centre management, and then identify and allocate the appropriate type of Section 4 accommodation to be sourced. Health and access issues may also be considered by the Home Office at this stage”
[8]Annex A of the above guidance states:
“A.1.1 The Authority expects that the substantial majority of dispersals shall take place within 9 Working Days of the Provider receiving the relevant Accommodation Request. However, the Authority may give notice of less than 9 Working Days (see 2.8.1) ... A.1.4 The Provider must submit Accommodation Proposals to the Authority by the time required in the relevant Accommodation Request” (Home Office, 2012: 72) Since 2012, the Home Office has procured Section 4 accommodation, including Section 4 (1)(c ) bail accommodation, from three firms (G4S, Serco, and Clearel) under COMPASS35 contracts36.”
[9]Once a provider has allocated Section 4 (1)(c) bail accommodation and given details of the accommodation to the Home Office, if an applicant is still on licence then it is a standard condition of any release licence that accommodation must meet the approval of the probation service. Similarly an individual still within their licence period seeking release on immigration bail to Home Office Section 4 (1)(c) accommodation must have that accommodation approved by probation services.[10]I have been referred to the judgment in R (Sathananthan) v SSHD [2016] EWHC 1781 (Admin), [2016] 4 WLR 128 in which Edis J formulated the principles to be applied. I have set out the main extracts which are relevant to this claim:
“14 Chapter 5 of the UKVI s.4 Policy contains instructions to the Section 4 Bail Team for dealing with applications for bail accommodation. An application form is required. These applicants may be asylum seekers (who could also apply under s.95), failed asylum seekers (who could also apply under s.4(2) and (3) ) or people who have never had an asylum application but are otherwise in detention under any provision of the Immigration Acts. There are three types of accommodation provided by the SSHD (acting through UKVI) under the UKVI s.4 Policy, and in this respect as in others the content of the Home Office s.4 Policy is very similar (often identical). The three types of accommodation are:- i) Initial Accommodation (IA), or Level 1 accommodation. This is usually hostel type accommodation which is short term. People stay in such accommodation while more suitable long term accommodation is found. This can be used for bail applicants, but is not suitable for offenders who present a high risk, as shown by a conviction for a violent, sexual or serious drug offence or a MAPPA category 1, 2 or 3, level 2 & 3 3 . This means that such people are handled outside the mainstream of the system. An early decision must be made that they are not suitable for Level 1 and whether Level 2 or 3 is appropriate. I will call this the “threshold decision.” ii) Standard Dispersal Accommodation, or Level 2 accommodation. This is longer term accommodation which is provided by third party contractors to the SSHD. It may be shared accommodation and may be unsuitable for people who present a particular level of risk. iii) Level 3 or Complex Bail Dispersal Accommodation. The UKVI s.4 Policy says that “in the rare event the applicant is assessed as being unsuitable for Standard Dispersal Accommodation Home Office case workers should assess whether Complex Bail Dispersal Accommodation is suitable”
. The UKVI s.4 Policy says that this will usually only be the case when the Offender Manager 4 has identified specific licence conditions which could not be met in Standard Dispersal Accommodation. This implies that Level 3 applicants will “usually” be subject to licence after release while still serving a prison sentence. In such cases, an arrangement will usually already be in place to regulate the offender once released from immigration detention, and that will include a restriction on where s/he can live. The accommodation provided under s.4 at Level 3 will usually be a single occupancy flat which means that the occupant does not present a risk to those with whom s/he shares premises. Its location must be suitable also, and properties near schools and parks will not be judged suitable for some offenders.”[11]At paragraphs 62 and 63 of the judgment the judge emphasized the importance of the right to liberty and to a speedy determination of the propriety of detention:
“62. It seems right to start with a firm expression of the importance of the right to liberty, and to a speedy determination of the propriety of administrative detention by an impartial court. Article 5 of the European Convention on Human Rights identifies key principles of the common law in this regard. The common law history is outlined in A v. SSHD [2005] 2 AC 68 [36]. Lord Bingham there sets out the submission made by counsel for the claimants in that case but does so in a way which makes it clear that he accepts the common law origin of the fundamental importance of the right to personal freedom. This approach to Article 5 and Article 5.4 in particular is mandated by R (Osborn) v. Parole Board [2014] AC 1115 [57]-[63]. I start from the proposition that the claimants' right to liberty is a fundamental one which the courts will protect to ensure that any restrictions are lawful, proportionate and subject to judicial oversight. 63. This starting point affects a number of aspects of the case. The importance of the right requires proper protection by fair procedures and judicial oversight. Where detention has no defined duration its impact may be particularly damaging to the detainee. I was supplied with the Review into the Welfare in Detention of Vulnerable Persons CM 9186 January 2016 by Stephen Shaw to illustrate this observation. In the case of immigration detention, the length of the detention is constrained always by Hardial Singh[8] principles which do not require a certain release date to be known at the start of the detention. The lawfulness of detention is determined when challenged on that basis by the High Court in judicial review proceedings, and in damages actions. There is, therefore, judicial oversight of detention. The present claims concern bail prior to the Hardial Singh end point which is an important safeguard against unnecessary detention”
[12]The judge emphasised the defendant's duty to operate the system fairly and rationally “69. I do nevertheless conclude that the statutory power in s.4(1)(c) is a power coupled with a duty. It is unnecessary to decide whether the duty extends to the existence of a policy of the kind I have been describing because there is one. The policy itself is not challenged as being unlawful. In my judgment, as Mr. Tam was inclined to accept, there is a duty to operate that policy fairly and rationally. That involves a duty to determine applications fairly and rationally and to apply the relevant policy. Unusually for an application for assistance, the task of assembling all relevant material falls not on the applicant but on UKVI under the UKVI s.4 Policy. If there is a duty to deal with applications fairly and rationally, this must extend to all the parts of the process for which the SSHD is responsible. The duty to deal fairly and rationally with an application in these circumstances is not merely confined to adjudicating on material supplied by the applicant. This is not, in practice, a materially different duty from a duty to make reasonable efforts to provide accommodation. I prefer the formulation of the duty as a duty to act fairly and rationally and in accordance with the policy when confronted with an application because it seems to me to arise from very clear public law principles which regulate the exercise of powers. The argument which Nicol J summarises in Razai at paragraph 25 by analogy with s.117 of the Mental Health Act 1983 was not advanced before me and is not entirely convincing because s.117 in terms creates a duty whereas s.4(1)(c) in terms confers a power. The route I prefer leads to a very similar result.”[13]The judge made the following observations as to the delay in processing applications. “76. Delay in processing an application whose outcome will affect the liberty of the applicant may require the intervention of the court. R v. Home Secretary ex.p Phansopkar [1976] 1 QB 606, 626B-G per Scarman LJ is authority for this, if any were needed. This is a principle of the common law. That was a case where the right to family life under Article 8 was engaged rather than the right to liberty, but the common law has always protected the right to liberty. Habeas corpus and bail are creations of domestic law in England and Wales. In R (Noorkoiv) v. SSHD and another [2002] EWCA Civ 770 the Court of Appeal held that the obligation to avoid delay in determining a person's right to be released is a more intense obligation than the duty to try criminal cases within a reasonable time. Lack of resources and administrative necessity do not justify such delays. This was a decision framed in terms of Article 5. It is authority for the need for public authorities to have effective systems for taking steps which are designed to affect the release from detention of any person.”[14]The judge drew the distinction between cases of maladministration and unlawfulness. “81 Mr. Tam submits that the cause of the delays in the three cases before me, and in many others no doubt, is not unlawfulness but, at worst, maladministration. He also submits that the systemic delay question is not justiciable. The remedy for maladministration is by accountability to Parliament and the Ombudsman. This is really because a complex multi-agency system such as the present involves many decisions and many components. I reject the submission that the court has no ability to determine the lawfulness of the operation of a system which is relevant to the length of administrative detention. It appears to me that this is one of the more important functions a court may have to fulfil. The authorities which I have cited above are all to the like effect. I have quoted Stanley Burnton J above as an example of a case where the court did just that, but exercised appropriate restraint in deciding what remedy was appropriate. The Master of the Rolls in the Detention Action case cited above when dealing with the Fast Track Rules (FTR) for asylum appeals said:
“For the reasons that I have given the FTR are systemically unfair and unjust. The appeal must, therefore, be dismissed. The object of the SSHD in placing appeals in the fast track is the entirely laudable one of dealing with them quickly……….But the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the 2007 Act recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency….It is too heavily weighted in favour of [speed and efficiency] and needs to be adjusted. Precisely how that is done is a matter for the Tribunal Procedure Committee and Parliament.” 82 The Fast Track Rules were rules for speedy determination of appeals and the court is very well placed to assess their fairness. That was a different kind of exercise from that which is involved in this case. The fairness of procedural rules is obviously justiciable, but the SSHD made a somewhat similar submission at [28] which was rejected. The court should respect the rule making process, but that must not be taken too far. The court guards its jurisdiction in cases involving liberty jealously. Where the lawfulness of a system is under consideration, the court will not seek to design a better system or to impose any targets on the executive. If the system is unlawful, the court will say so and leave it to the executive and Parliament to remedy the position: see as an example, the approach of Elias J in R (Mersin) v. SSHD [2000] INLR 511 at pages 3 and 4 when the judge rejected out of hand a submission that the court ought to supervise the remedial process. 83 On that basis the operation of a system of this kind is justiciable. 84 In relation to maladministration Mr. Tam relies on R (S) v. SSHD [2007] EWCA Civ 546 [39]-[41] per Carnwath LJ as he then was, and Moussaoui v. SSHD [2016] EWCA Civ 50 [21]-[26] per the Master of the Rolls. The court is concerned with illegality and not maladministration. 85 The s.4 bail system does not work for high risk offenders. The timescales set for herself by the SSHD (and included in the policies and COMPASS contracts) are routinely not met, and missed by substantial margins. Each of these delays builds on others to amount to lengthy inactivity. In itself that does not amount to illegality. It may simply be that the timescales are hopelessly optimistic for these difficult cases. A failure to meet these deadlines is not evidence of unlawfulness. I agree with Thirlwall J that ground 2 was not arguable. That ground sought to say that each time a deadline, or target, was not met this was unlawful delay” “For the reasons that I have given the FTR are systemically unfair and unjust. The appeal must, therefore, be dismissed. The object of the SSHD in placing appeals in the fast track is the entirely laudable one of dealing with them quickly……….But the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the 2007 Act recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency….It is too heavily weighted in favour of [speed and efficiency] and needs to be adjusted. Precisely how that is done is a matter for the Tribunal Procedure Committee and Parliament.”
[15]The judge found that in each case time taken to resolve the application amounted to a breach of the duty to act fairly and rationally. He did not identify particular decisions informing that outcome. “91 It is not appropriate to seek to analyse the facts of each case to identify individual decisions which caused delay because that would involve the court in an impossible task and would not result in any finding of illegality in any event over and above the one I have already made. The reason why it would not result in any finding of unlawfulness is that this exercise would be an enquiry into maladministration of the kind identified and precluded in the authorities at paragraph 83 above. It does appear that there was maladministration in each case in that the chronologies show a lack of vigour in pursuing COMPASS providers and NOMS and the police and, perhaps, a too ready acceptance of objections to addresses by the latter two agencies. In the case of Ali there was a significant period when his case was simply overlooked and nothing was done. That maladministration was not of itself illegal, but there came a time in each case where it put the SSHD in breach of her legal duty which I have identified. The process simply took so long in each case that it was not being conducted fairly or rationally. 92. I hold that in each case the time taken to resolve the application amounted to a breach by the SSHD of her duty to deal with the applications fairly and rationally. I cannot allocate that unlawfulness to particular decisions or to particular periods of delay for the reason I have explained. In effect, my finding is similar to that of Stanley Burnton J in Salih. It is therefore essential that the system is overhauled and entirely appropriate that there is to be a pilot by NOMS of a system designed to reduce delays for which it is responsible. When arrangements come to be made under the Immigration Act 2016 the failures of the existing system must be addressed.”

The judge made observations as to when delay can be seen to be too much:

“95. There is also no easy way to determine in each case the point at which the processing of the s.4 application had gone on so long that it became unlawful. That is a fact specific decision of the kind required when considering whether any particular period of detention was unlawful under the Hardial Singh principles. The Court of Appeal in Fardous v. SSHD [2015] EWCA Civ 931 explained the nature of that kind of decision and made it clear that there are no rules of thumb by which an answer can be produced.”
[17]I have had regard to Mr Vaughan and Mr Metcalfe’s detailed submissions in writing and made orally, and the authorities I have been referred to, during the course of the hearing, notably Sathanantham, the leading authority on this issue. I have not sought to repeat them in detail in this judgment. I have set out what I regard as being the main points in issue.[18]Mr Vaughan submits that the claimant’s detention was unlawful between 10 November 2017 and 7 December 2017 because of the defendant’s failure to process the claimant’s section 4 application lawfully. His principal submission is that that the unlawfulness amounted to a material public law error, which bore upon and was relevant to the claimant’s detention following the grant of bail in principle; and that the Defendant cannot show that the Claimant would have been detained in any event. Alternatively, he submits that by that date, the claimant’s detention was in breach of the second and third Hardial Singh principles because his detention exceeded a reasonable period in all the circumstances, and it was then it was apparent that he could not be deported within a reasonable time. The Senegalese embassy had refused to issue a travel document on 3 November 2017, notwithstanding that the defendant had informed the embassy that the claimant had exhausted his appeal rights. Mr Vaughan submits that the claim should be seen in the context of the decision in Sathanantham where the section 4 bail accommodation scheme was held to be unlawful and that the system should be overhauled.[19]He submits that in July 2016 the defendant was operating the bail system unlawfully in breach of the principles in Sathanantham. He draws the distinction between the application for bail accommodation and the application for bail itself. He argues that there the duty to process the bail accommodation application itself is unrelated to the merits of the bail application. He submits that the defendant has conflated the two. He draws attention to the fact that no witness statement has been filed, and to the observations of Sales J in R (Das) v SSHD [2013] EWHC 682 (Admin) at [21], on the permissibility of drawing adverse inferences where no witness statements explaining the decision-making process have been filed. He asks that I should make a series of factual findings as to the defendant’s lack of diligence and expedition of the section 4 bail applications. He submits that the delay between the section 4 application and the bail hearing, a period of 13 months and 11 days, was caused predominantly by Clearel in finding suitable accommodation. He submits that there is no evidence that the defendant expedited the application before September 2017, and there was only one communication from Clearel before the bail application was made, namely on 14 October 2017. The spreadsheet attached to that email showed that the claimant had the second longest wait amongst those on the waiting list of 252 days. After the bail application was made on 1 November 2017 the accommodation provider was not chased until 9 November 2017, the day before the hearing. On the same date the defendant emailed the section 4 team of the 14-day deadline to secure accommodation. There was a further email on 24 November 2017. On 25 November 2017, following the pre-action protocol letter, the section 4 team noted “address needed in 7 days – best available”. He draws my attention to the eventual property proposal on 1 December 2017 being initially described as “level 2 – self-contained room”; however, when the proposal was sent to the defendant’s criminal casework directorate (CCD it was described as “level 3 self-contained”.[20]Mr Vaughan submits that the defendant breached its duty to process the claimant’s section 4 application fairly and rationally and within a reasonable time, in any event by 1 November 2017, the date of the bail application. He submits that there is a public law error in the claimant’s detention from the grant of bail in principle. He relies upon their being sufficient proximity between the need for bail accommodation and a detainee being released on bail. Alternatively, he submits that there has been a breach of the Hardial Singh principles because it was apparent that the claimant could not be removed within a reasonable time. Following the refusal of temporary admission on 12 October 2017 it was clear that the claimant had exhausted all his appeal rights against deportation, the only barrier to his removal was the obtaining of emergency travel documentation to facilitate his removal to Senegal. He underwent a telephone interview on 3 November 2017 following which the Senegalese Embassy refused to issue a travel document on the grounds that it would facilitate his separation from his children. He submits that the correspondence disclose that the embassy was aware that his appeal rights were exhausted. The claimant had been detained for 14 months by 1 November 2017, which was in excess of a reasonable period. His offending, although highly relevant, was in the context of domestic dispute and his placement was away from those who knew him. In any event he could not be removed within a reasonable time. It is also submitted that the delay in processing the section 4 application was contrary to Article 5 ECHR, irrespective of the lawfulness of his detention.[21]Mr Metcalfe submits that there was no material breach of the defendant’s duty to process the claimant’s application for bail accommodation and his detention between 10 October 2016 and 7 December 2017 was not unlawful. Given the claimant’s history of violent offending, it was inevitable that it would take some time to identify suitable accommodation. In any event the period between the FTT’s first grant of bail and the claimant’s release from detention was less than 28 days in total, which was not unreasonable in the circumstances. He submits that the detention between 1 November and 7 December 2017 involved no breach of the second or third Hardial Singh principles. Given that he was appeal rights exhausted, the defendant was entitled to conclude that the embassy could be persuaded to issue travel documents in order to effect his deportation within a reasonable time.[22]He submits that after his detention the claimant made no application for bail, presumably because he knew that the application would fail as he was a violent offender at risk of re-offending and absconding. He accepted in oral submissions that there was no substantial progress in the section 4 bail accommodation application until August 2017, but he submits it was irrelevant that nothing occurred before November 2017. After the second application on 10 August 2017, he submits that the defendant took reasonable steps to secure accommodation, but the claimant’s needs were complex and had to be sourced from a limited housing stock. No address was available. He also submits that whichever date is taken the periods are far less than those considered in Sathanantham which involved three cases averaging more than 18 months. After bail was granted in principle on 10 November 2017, the defendant acted promptly and diligently, and criminal casework submitted pro forma maintaining the need for a level 3 address. The defendant was entitled to conclude that the claimant was not suitable for standard dispersal.[23]The question that he asks was whether there was any unreasonable delay in securing level 3 accommodation between 10 November 2017 and 7 December 2017. He refers me to the chronology of events which shows that on 13 November 2017 there was an escalation which led to the finding of accommodation on 2 December 2017. It was chased on 20 November 2017 and escalated on 22 November 2017. On 24 November 2017 the defendant considered whether to lower the requirement but the claimant was considered too high a risk. Bail was again granted in principle on 5 December 2017 and accommodation was secured within five days. As to the breach of Hardial Singh principles the defendant did not become aware of the refusal by the Senegalese authorities until 9 November 2017 and thereafter reasonably concluded that the Senegalese authorities could be persuaded to issue an emergency travel document.[24]The conclusion that I have reached is that the period of the claimant’s detention was unlawful from 10 November until 7 December 2017. Mr Vaughan does not pursue the period before 10 November 2017 but relies upon it to demonstrate the lack of progress in finding suitable section 4 bail accommodation. I am, however, satisfied that the failure to take any effective steps to expedite the application before September 2017 is relevant to this extent, namely that the defendant was not acting fairly and rationally in administering the section 4 bail accommodation scheme. In my view the cumulative failure to take even basic steps to expedite the application, when it was known that the claimant was a violent offender, requiring level 3 accommodation, was unlawful. I do not make specific findings as requested by Mr Vaughan but I am satisfied that the cumulative events go beyond maladministration. The defendant should have secured section 4 bail accommodation by the time that the FTT granted the claimant’s application for bail on 10 November 2017. The events that followed, as submitted by Mr Vaughan, are a further indication that little was done until the end of the 14 day window to find accommodation. It was only after that date, when the FTT relisted the application on 27 November 2017, that the search for accommodation can be said to have been earnestly promoted.[25]I have also considered whether there was a breach of the Hardial Singh principles, formulated in R (I) v SSHD [2002] EWCA Civ 888 in this case, in particular (ii), (iii) and (iv). In view of the decision above I do not propose to set them out here. In so far as it is necessary, I accept Mr Vaughan’s submissions that following the refusal of the Senegalese embassy to grant emergency travel documentation, it was apparent that there was no prospect of the claimant’s deportation within a reasonable period. I accept that following the claimant’s release from prison, the defendant was entitled to detain him for the purpose of his removal for deportation. The claimant had been convicted of serious offences of domestic violence and was subject to the procedure for deportation. From 10 November 2017, it should have been evident to the defendant that, unless the Senegalese embassy changed its position, the claimant could not be removed readily from the UK, and timeous arrangements should have been made for his bail accommodation.[26]In the light of my decision I ask that counsel should draw up an appropriate order for submission to me.

Cited in 4 later judgments