Shote, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 87 (Admin)

[2018] EWHC 87 (Admin)Case No CO/1644/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 January 2018
Before
MICHAEL FORDHAM QC(Sitting as a Deputy High Court Judge)
Between
R (on the application of SHOTE)ClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Shaheen Haji and Tiki Emezie Solicitor-Advocate(instructed by Dylan Conrad Kreolle) for ClaimantJennifer Thelen (instructed by Government Legal Department) for DefendantHearing Hearing date: 7 November 2017
Judgment ApprovedMr Michael Fordham QC :INTRODUCTION
[1]This claim for judicial review concerns the legality of immigration detention. On 21 March 2017 the Secretary of State decided to remove the claimant. In conjunction with that proposed removal, the claimant was detained (under immigration detention powers in paragraph 16(2) of Schedule 2 to the Immigration Act 1971) on 30 March 2017 when she appeared as required at Croydon Reporting Centre. Immigration detention continued until the claimant was released on bail on 2 May 2017. All of the issues raised in the claim, and all of the remedies sought, concern the legality of those 33 days of detention.[2]Several of the claimant’s arguments invoke a principle of law to which I will refer as “Hardial Singh 3”. Under Hardial Singh 3 the Secretary of State should not exercise a power of immigration detention where it is – or has become – apparent that she will not be able to effect removal within a reasonable time. See R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §22, where Lord Dyson (with whom a majority of the Supreme Court agreed) approved this and the other principles identified by Woolf J in R v Governor of Durham Prison, ex p Hardial Singh [1974] 1 WLR 704.[3]Permission for judicial review was granted on 1 June 2017, with directions for filing of documents including any grounds of resistance and skeleton argument by the Secretary of State. She had not filed an acknowledgment of service at the permission stage. Following the grant of permission, a listing appointment was attended by the parties’ representatives on 22 June 2017 and the substantive hearing was fixed for 7 November 2017. The detailed grounds and evidence of the Secretary of State were due on 6 July 2017, but these were not filed until 31 October 2017, after the claimant’s skeleton argument. No good reason for this has been put forward. The Secretary of State, recognising her default, filed an application dated 3 November 2017 seeking an adjournment on the papers and offering to pay the costs thrown away. That adjournment was opposed in writing and, in the circumstances, I declined to grant it on the papers and informed the parties that I would deal at the fixed hearing date with any applications that were maintained. The Secretary of State filed a short skeleton argument on 6 November 2017. At the hearing on 7 November 2017 both parties wished the substantive hearing to proceed, as it did.[4]As to whether the Secretary of State ought in these circumstances to be permitted to participate and rely on her late grounds and evidence, the claimant (through her counsel Ms Haji) invited my attention to the observations of Laing J in R (Kalah) v SSHD [2017] EWHC 2373 (Admin) at §§8-12 and my own in R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) at §§21-37. Having done so, the claimant did not press objection to the Secretary of State participating at the hearing to assist the Court, or relying on the grounds and evidence. She did however submit that the Court could and should mark disapproval by means of an adjusted approach to any costs order. In the circumstances, I decided it was appropriate to hear from the Secretary of State (through her counsel Ms Thelen), to allow reliance on the grounds of resistance, and to allow both parties to rely on the evidence. I will deal with the question of costs at the end of this judgment. At the substantive hearing I heard full submissions on both sides, including on the approach I should adopt to costs on the various outcomes that could ensue.[5]The argument on the points of law in this case were not completed at the substantive hearing. That is because various points arose on which the Court needed to be better informed and provided with further material. In circumstances where I was in any event reserving judgment, I gave the parties the opportunity to file further submissions and materials, with an agreed timetable for this. I have considered the written submissions and materials provided.[6]I return to the background facts. The claimant was born in 1991 in Nigeria to a mother who was a national of Finland. Aged 13, she entered the United Kingdom for the first time in April 2005 on a valid visit visa. In August 2005 she became an overstayer. She made unsuccessful applications for leave to remain in 2012, 2013 and 2016. In May 2016 she was detained for removal subsequently set for 9 June 2016 and then 4 July 2016, but which did not proceed. At that time she filed a claim for judicial review (9 June 2016), permission for which was refused on paper (14 July 2016) and at an oral hearing (27 September 2016).[7]Meanwhile, on 7 July 2016 the claimant was released on bail by the First Tier Tribunal (FTT) with reporting restrictions. A Home Office notification dated 14 July 2016 (form ICD.1100) records the claimant being notified that she was to attend on 21 July 2016 when there would be a variation from immigration judge’s bail to Chief Immigration Officer’s bail. Home Office notifications dated 21 July 2016 (forms IS.99 and IS.99A) record the claimant having so attended and having given her recognizance to appear at the Croydon Reporting Centre on 12 January 2017. It is common ground that bail continued until 30 March 2017 when the claimant attended at the Reporting Centre as required.[8]On 27 February 2017, acting pursuant to Regulation 7 of the Immigration (European Economic Area) Regulations 2016 (the 2016 EEA Regulations) the Secretary of State refused an application made by the claimant on 5 June 2016 for a residence card as confirmation of a right of residence in the United Kingdom as the dependent family member of an EEA national, her Finnish mother. The refusal was on the ground that the Secretary of State was not satisfied that the claimant was genuinely dependent upon her EEA family member. The notice of decision informed the claimant:(a) that she should make arrangements to leave or could be the subject of enforced removal; and(b) she had rights of appeal and to submit a further EEA application if able to demonstrate an EU right of residence. The claimant filed an appeal on 8 March 2017.[9]The Secretary of State then generated a notice of fresh removal window (form RED.0004) dated 14 March 2017, addressed to the claimant and informing her that her new removal window commenced after 7 days of receipt of the notice (counted as being two working days after posting) and remained in force up to three months, in which time window she could be removed without further notice.[10]When the claimant attended the immigration reporting centre in Croydon on 30 March 2017, in accordance with the terms of her bail, she was served with a letter dated 21 March 2017, notifying her of removal directions for 22:30 on 30 March 2017. She was detained, and served with a notice of immigration detention (form IS91R).[11]The claimants’ solicitors sent a letter before claim immediately on 30 March 2017. An interim order was obtained by them from this Court, staying removal in proposed judicial review proceedings to challenge the proposed removal. This order is dated and stamped 31 March 2017, but it was described in the papers as granted on 30 March 2017 and I was told it was served on the Secretary of State around 8pm. It was effective to stop the removal.[12]The claimant’s solicitors followed up with a human rights claim on 31 March 2017. On 3 April 2017 this judicial review claim was formally commenced, with a claim form and judicial review grounds. On the same day, a further EEA residence card application was made, as was a request for release on temporary admission. On 12 April 2017, the claimant’s solicitors made a bail application, which the FTT granted on 2 May 2017. Meanwhile, the Secretary of State had reviewed the immigration detention (31 March 2017, 6 April 2017, 12 April 2017); she had rejected the human rights claim, written a judicial review pre-action response and refused release (10 April 2017); and she had produced a bail summary (28 April 2017).[13]Following the claimant’s release on bail, this judicial review claim was maintained, as a challenge to the legality of the 33 days of immigration detention. That is the claim for which permission for judicial review was granted. Many arguments were raised but there are essentially five reasons which have been advanced by the claimant, as to why the immigration detention in this case was unlawful, whether for the whole or part of the period of 33 days. I turn to deal with those five essential points.

THE SUSPENSIVE APPEAL POINT

[14]The first reason relied on by the claimant is that the appeal against the refusal of an EEA residence card, filed on 8 March 2017, was in law a suspensive in-country appeal, which barred removal action. If removal action was barred, Hardial Singh 3 was breached by the detention.[15]I cannot accept the claimant’s argument. Regulation 36 of the 2016 EEA Regulations provides for the relevant appeal rights. Regulation 37 identifies which appeals can only be pursued out of country, and does not include an appeal against an EEA decision to refuse a residence permit. Regulation 40(2) and (3) identify the situations in which directions for removal are to have no effect while an appeal is pending. Regulation 33(1)(a) and (2) identifies a further situation in which an extant appeal restricts the giving of removal directions, absent certification.[16]These are express, carefully designed protections and the claimant cannot demonstrate that she falls within them. The fact that she is not required to appeal only from abroad (Regulation 37) does not mean she is entitled, on having commenced an appeal, not to be removed. That would be to “conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion”, which was the “basic flaw” identified in R (Ahmed) v SSHD [2015] UKUT 00436 (IAC) at §26, in a passage endorsed by the Court of Appeal [2016] EWCA Civ 303 [2016] Imm AR 869 at §10.[17]Regulation 2 defines “EEA decision” as including “a decision under these Regulations that concerns … (b) a person’s entitlement to be issued with … a … residence card”. That covers this case, but is not a species of EEA decision covered by Regulation 40(2) or (3). Regulation 36(10) and Schedule 2 mean that certain provisions of the Nationality Immigration and Asylum Act 2002 have effect to EEA appeal rights; but those provisions do not include section 78 of the 2002 Act (which prohibits removal from the United Kingdom in certain situations).[18]As Laws LJ (for the Court of Appeal) explained in Ahmed (see [2016] EWCA Civ 303 at §13) – a case which concerned the previous 2006 EEA Regulations (the Immigration (European Economic Area) Regulations 2006) – the “plain inference [is] that it was the specific intention of the subordinate legislator to deny … suspensive effect” to an appeal against refusal of an EEA residence card. The claimant in the present case was unable, in my judgment, to point to any material distinction between the 2006 and the 2016 EEA Regulations, nor was I shown any conflicting binding authority or overriding and inadequately-domesticated EU right.

THE SECTION 10 POINT

[19]The second reason relied on by the claimant is that she could not be removed pursuant to section 10(1) of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014), that being the removal power relied on by the Secretary of State in this case. If irremovable under section 10, then Hardial Singh 3 was breached by the immigration detention.[20]The claimant’s argument involves what I discerned to be the following steps.(1) Section 10(1) only empowers removal of a person who “requires leave to enter or remain in the United Kingdom but does not have it”.(2) A person who can demonstrate, objectively, that they meet tests of eligibility under the 2016 EEA Regulations so as to have a right to a residence permit (here, as a “family member” through being a “dependant”: Reg. 7) has thereby an entitlement to residence in the UK (Reg 14(2)) and so does not need leave to enter or remain.(3) Where the Secretary of State has wrongly failed to recognise that eligibility, the person asserting it, and able objectively to demonstrate it, is irremovable under section 10(1).(4) That position is given effect by means of the judicial review Court having a precedent fact function, to determine the factual questions of eligibility, in order to determine the legality of removal or (here) the legality of immigration detention applying Hardial Singh 3.[21]The claimant accepts that this argument would not have been available prior to the 2014 Act amendments to section 10. That is because the pre-2014 Act wording was applicable to a person who previously had leave to enter or remain but had remained beyond the time limited by that leave. That description would have applied to the claimant in the present case, who from August 2005 had been an overstayer.[22]I cannot accept the claimant’s argument. A person whose claimed eligibility under the 2016 EEA Regulations has been rejected, and who wishes to contest that conclusion through a legal remedy, has statutory appeal rights. In the present circumstances, they are not suspensive: see above. Indeed, it would subvert that statutorily non-suspensive character if removal could prospectively be challenged on judicial review by determining the merits of that eligibility.[23]The correct analysis, in my judgment, is as follows. A person who claims eligibility under the 2016 EEA Regulations, and whose claim has been rejected by the Secretary of State but is appealable, is a person who “requires” and “does not have” leave to enter or remain for the purposes of the section 10(1) removal power. Eligibility under the 2016 EEA Regulations is not a precedent fact for the purposes of judicial review of the section 10 removal power, nor for the purposes of judicial review of immigration detention. It follows that, on the premise that steps(1) and(2) are correct, steps(3) and(4) are not.[24]I have found it instructive to consider the position regarding an argument which was advanced in Ahmed, based on three statutory provisions which (in their then wording) combined to govern the question of removability: section 10 of the 1999 Act, read with sections 78 and 92(4)(b) of the Nationality Immigration and Asylum Act 2002. The provisions were set out as part of an Appendix to the Upper Tribunal’s determination [2015] UKUT 00436 (IAC). The claimant in that case asserted that she could demonstrate eligibility as a “family member” under the 2006 EEA Regulations, as a “spouse” to a marriage which was not a “marriage of convenience”. Pointing to the design of the statutory provisions governing removal, and in particular the express description of “a member of the family of an EEA national” in section 92(4)(b), the claimant argued as follows: that she could not be removed pursuant to section 10, because she could demonstrate eligibility objectively, thus falling within the express description in section 92(4)(b), which constituted a precedent fact determinable by a court considering judicial review of the proposed removal.[25]That argument is different from the one advanced in this case, as is the applicable statutory language. But its nature is similar, and I have found the approach instructive. There are two key points which I have taken from that case. I note that the Upper Tribunal in Ahmed pointed out that the logic of the argument would undermine the express provisions of the 2006 EEA Regulations regarding appeal being non-suspensive (see [2015] UKUT 00436 at §39):
“Parliament’s decision not to make an appeal against the EEA decision suspensive … would be rendered effectively nugatory”
. I have the same concern in the present case.[26]The first key point was that the Court of Appeal in Ahmed held that, even where the statutory provision governing removability (section 92(4)(b)) used the express description “a member of the family of an EEA national”, that did not apply (see [2016] EWCA Civ 303 at §24) to “a person who claims to be such”. The Court went on to refer to it being for the individual “to establish his EEA claim”, using the statutory mechanism of “application to the Secretary of State with a right of appeal thereafter” (§27). If anything, the argument in the present case is harder for the claimant than was the argument in Ahmed. That is because section 10(1) does not use an express description of an EEA family member. Be that as it may, in my judgment, the Court of Appeal’s logic is at least as compelling here. An individual cannot avoid the description of a person who “requires leave to enter or remain” by reason of a claimed eligibility, rejected by the Secretary of State and yet to be determined on appeal.[27]The second key point was that the Court of Appeal in Ahmed went on to reject the precedent fact argument. Applying the approach in R (Giri) v SSHD [2015] EWCA Civ 784 [2016] 1 WLR 4418 at §20, the Court held that precedent fact analysis would need there to be, as with past deception under section 10 of the 1999 Act as previously framed, a factual question on which “as a matter of statutory construction, the very existence of the power to remove would depend” (Ahmed at §§25-26). In my judgment, eligibility under the 2016 EEA Regulations is not such a question. Even if there were a precedent fact analysis in relation to the phrase section 10(1) “requires leave to enter”, the enquiry would in my judgment lead back to the current factual situation in which the claimed eligibility has been rejected under the statutory mechanism.[28]For all these reasons, this part of the claim is in my judgment unsustainable. It is in my judgment neither necessary, nor fruitful, to consider what the implications for removal, immigration detention and Hardial Singh 3 would have been, had section 10 been framed differently.[29]The claimant relied on Khan v SSHD [2017] EWCA Civ 1755. In that case, the Court of Appeal distinguished between eligibility and “entitlement” under the 2006 EEA Regulations, for the purposes of appeal rights against EEA decisions. The Court identified entitlement of two kinds, both appealable (see §45). One (family member) involves eligibility triggering a duty and so represents a right. The other (extended family member) involved eligibility triggering a discretion as to whether to confer an advantage. The claimant is able to say that, if she is right as to her eligibility, she has the first kind of entitlement. In my judgment, this does not assist or affect the analysis.[30]I add these points by way of footnote. First, the Secretary of State did not accept that, even had the claimant been irremovable under section 10 on this ground, the immigration detention in this case would have been unlawful. Secondly, I was not in any event in a position to resolve any question of precedent fact as to eligibility (in particular, whether there was a relationship of dependency) in this case. Thirdly, no argument was advanced before me as to whether the Secretary of State’s conclusion on eligibility (ie. dependency) was unreasonable applying “the ordinary public law approach”, or as to the aptness of dealing with such an argument given the availability of the statutory appeal (see the Upper Tribunal in Ahmed at §§41-43 and the Court of Appeal in Ahmed at §28); nor as to whether it would follow that the immigration detention would be vitiated.

THE BAIL POINT

[31]The third reason relied on by the claimant is that the immigration detention on 30 March 2017 was unlawful because there was an extant grant of conditional bail by the First Tier Tribunal (“the Tribunal”), of whose conditions the claimant was not in breach. Reliance was placed on R (Lucas) v SSHD [2016] EWHC 1960 (Admin) [2016] 4 WLR 135.[32]The essential steps in the argument, as I have discerned them, are as follows.(1) The Tribunal granted bail in this case on 7 July 2016, on such conditions as the Tribunal considered appropriate, pursuant to paragraph 22 of Schedule 2 to the Immigration Act 1971 (“the 1971 Act”).(2) That grant of bail by the Tribunal remained extant as at 30 March 2017, notwithstanding various appearances before an immigration officer, including on 30 March 2017 itself.(3) Schedule 2 paragraph 24 prescribes certain circumstances of breach and likely breach which justify redetention where bail has been granted, which grounds were not invoked in this case.(4) It was not open to the SSHD simply to invoke general immigration detention powers to redetain, in connection with newly proposed removal.[33]I cannot accept this argument. In my judgment, the logic breaks down at step (2), and the correct analysis is as follows.[34]In this case the claimant appeared before the immigration officer on 21 July 2016, pursuant to the Home Office notification dated 14 July 2016, and was expressly the subject of chief immigration officer bail thereafter. It is said in a witness statement filed by the claimant’s solicitor that the claimant “does not recall receiving” the notification of 14 July 2016, but I do not consider that anything can now turn on resolving any such factual dispute, where the notification was generated and it is clear that the claimant did attend on 21 July 2016 when bail was re-granted. This alone distinguishes the Lucas case. Lucas was a case which “on its facts” was held to be one where “the FTT bail continued”, because documents recorded that “the bail granted by the FTT judge was to continue” and there was an “absence of any fresh grant [of bail] by a chief immigration officer” (see §18).[35]In law, the Tribunal grant of bail came to an end when the claimant appeared before the immigration officer, on the relevant date for his appearance pursuant to paragraph 22(1A) of Schedule 2 to the 1971 Act. A submission to that effect was made to the Administrative Court at the hearing on 4 July 2016 in Lucas (see §13), and was not accepted by that Court when it gave judgment on 27 July 2016. However, on 26 July 2016 the Court of Appeal had considered the very same point in R (AR (Pakistan)) v SSHD [2016] EWCA Civ 807 [2017] 1 WLR 255, where it was common ground between claimant and Secretary of State (see §15(iii), 16), the Court had an amicus curiae to provide contested argument (see §17(ii)), and the Court accepted the point in its judgment dated 29 July 2016. It is a matter of regret that the Lucas and AR (Pakistan) Courts were evidently not aware of the same point being ventilated in two forums in such close temporal proximity. For purposes of the present claim, the point is authoritatively resolved by AR (Pakistan), which was accordingly followed in R (Tracey) v SSHD [2017] EWHC 1327 (Admin) at §§51-52; and in R (Lupepe) v SSHD [2017] EWHC 2690 (Admin) at §52.[36]As Longmore LJ (for the Court of Appeal) explained in AR (Pakistan) at §26: “paragraph 22 [of Schedule 2] … authorises a chief immigration officer or the First Tier Tribunal to release a detained person ‘on his entering into a recognisance … conditioned for his appearance before an immigration officer at a time and place named in the recognisance …’ This is a time-honoured form of words to express the idea of surrendering to bail. Once a bailed person surrenders to his bail (whether to magistrates or the Crown Court in a criminal case or to an immigration officer in an immigration case) it is then for that person to whom he surrenders to re-fix bail, if he or she considers it appropriate to do so and to determine any appropriate conditions”.[37]There may well be public law implications of the previous grant of conditional bail by the Tribunal, and the course taken by the chief immigration officer for the Secretary of State when the individual surrenders to bail. A Bail Guidance Note considered in AR (Pakistan) (at §23) recorded that:
“It is to be expected that the Tribunal’s decision as to the principle of release will be followed in the absence of a change of circumstances”
. As Longmore LJ added (at §28):
“any departure from [the Tribunal’s bail terms] to the prejudice of the bailed person would have to be justified and could be amenable to judicial review”
. That principle was considered in the Lupepe case (see §52), a case in which the Tribunal had not considered a bail curfew condition and one was eventually imposed by the Secretary of State, in circumstances which were procedurally unfair (see §84). As it seems to me, public law implications of an original grant of Tribunal conditional bail could in principle endure, notwithstanding subsequent surrenders of bail to an immigration officer, at least where bail continues as before and there is no change in circumstances.[38]In the present case, after the claimant surrendered to her bail on 21 July 2016 she was on chief immigration officer bail, which would then have been re-granted on subsequent appearances, until she appeared to surrender to her bail on 30 March 2017. At that date, she was detained. That detention is not rendered unlawful by virtue of paragraph 24 of Schedule 2. That power empowers arrest and detention during the period prior to the notified date for surrender to bail, on limited bases concerned with breach of other conditions, or apprehended breach of the obligation to appear to surrender to bail. No specific argument was advanced before me as to why detention was unlawful, unreasonable or unfair in the light of the original grant of Tribunal bail.[39]Finally, this was a case in which there was – on the face of it – a material change of circumstances by 30 March 2017. By that date the Secretary of State was intending removal, to take place within a short period thereafter. Nothing in the authorities cited to me on this issue indicates that immigration detention, imposed in such circumstances following a surrender to bail at a properly notified date for appearance, is in principle unlawful by reason of the original grant of bail, by the Tribunal and indeed by the chief immigration officer.[40]The judgment which I have found most instructive, for the purposes of the present case, is the first in the line of cases cited to me: the decision of Underhill J in R (S) v SSHD [2006] EWHC 228 (Admin) on 22 February 2006. That was a case in which the Asylum and Immigration Tribunal had granted bail on 19 January 2006, upon a recognizance to appear before an immigration officer on 16 February 2006. In the light of a change of circumstances – travel documents having become available and removal directions having now been set – the Secretary of State redetained the claimant from 27 January 2006, regularising the position on 4 February 2006 by giving notification of that date as a new appearance date for surrender to bail. Granting permission for judicial review the Court considered it arguable that detention between 27 January and 4 February 2006 was unlawful, it being doubtful that the Secretary of State could merely reassert general immigration detention powers after a Tribunal release on bail (see §11). That doubt was subsequently picked up by Collins J in his judgment in Lucas (at §23). The rest of the judgment in S addressed the legality of the detention after 4 February 2006. Refusing habeas corpus, Underhill J concluded that from 4 February 2006 the immigration detention had been lawful. That was because(1) the accelerated appearance date was properly notified and so was a lawfully varied date (paragraph 22(1A) of Schedule 2 to the 1971 Act) (see §12);(2) the Tribunal grant of bail was not undermined because there was a material change of circumstances given the imminent removal (see §13); and(3) the limited grounds for redetention under paragraph 24 of Schedule 2 were a distinct function which did not restrict the Secretary of State’s power to act where there was a genuine change of circumstances (§14).[41]I was shown no subsequent case which doubted this conclusion or analysis. S is authority for this proposition: following a Tribunal grant of bail, the Secretary of State can redetain the person on bail, at a properly notified and accelerated appearance date for surrender to the bail, at least where there is a material and genuine change of circumstances justifying the use of immigration detention powers. That is sufficient to dispose of the point of law raised in the present case, where moreover the appearance date had been set by the Secretary of State and involved no variation to accelerate a date set by the Tribunal.[42]I add by way of footnote that the one remaining case to which I was referred on this topic was R (Roszkowski) v SSHD [2017] EWCA Civ 1893. That case concerns the distinct question of when the Secretary of State can depart from conclusions of the Tribunal (eg. on abscond-risk), when refusing her consent pursuant to paragraph 22(4) of Schedule 2 to the 1971 Act (release on bail within 14 days of a removal date set in removal directions). The analysis of that issue in that case did not in my judgment assist, in either direction, on the issue raised in this case.

THE PROCEDURAL OBSTACLES POINT

[43]The fourth reason relied on by the claimant is that there were various procedural obstacles to removal in this case, namely:(a) the interim stay (30 March 2017) of removal, which was not subsequently set aside;(b) the human rights claim made on 31 March 2017, which the claimant submits could not be characterised as unarguable; and(c) these judicial review proceedings themselves filed on 3 April 2017 which, pursuant to the Secretary of State’s own policy, was a bar to removal. Given these features, the claimant submits that immigration detention was or, at some stage prior to 2 May 2017, became a breach of Hardial Singh 3. The claimant further submits that Hardial Singh 3 (removability within a reasonable time) was not addressed, properly or at all, in any document.[44]I cannot accept these submissions. The interim stay meant that the removal scheduled for 30 March 2017 could not take place. It did not follow from that alone that the claimant could not be removed within a reasonable time for the purposes of Hardial Singh 3, and the new 3-month removal window was on the face of it available, subject to the other procedural considerations. As for the human rights claim, this was considered and responded to promptly, by a letter of rejection dated 10 April 2017. That leaves these judicial review proceedings, and the question whether they could be disposed of by expeditious rejection. In my judgment, the Secretary of State did not act unreasonably in continuing to detain through to the grant of bail on 2 May 2017, bearing in mind the period of time and activity between 30 March 2017 and 2 May 2017, including the writing of a pre-action letter of response (10 April 2017), the time frame to 24 April 2017 for an acknowledgment of service, and the fact that by 28 April 2017 the Secretary of State had produced a bail summary for a bail hearing to take place on 2 May 2017.[45]The Court has the contemporaneous documentation, provided to it and the claimant, albeit late. That means I have been able to consider the reasoning for the detention reviews which took place on 31 March 2017, 6 April 2017 and 12 April 2017. Considering that reasoning in the context of Hardial Singh 3, and the circumstances as they presented themselves to the Secretary of State, I find no breach in this case.[46]The review of 31 March 2017 recorded that there were no current barriers to removal, the claimant having “an outstanding appeal against an EEA app[lication] refusal but this is non suppressive”. In fact, the interim stay had been granted although no order was drawn up until 31 March 2017. Plainly the case needed prompt further review, but that is what it received. The review of 6 April 2017 recorded that there was the interim order staying removal, explained that this needed to be monitored, and stated:
“detention remains appropriate in this case to effect removal which is anticipated in reasonable timescales”
. Next, the review of 12 April 2017 recorded that the judicial review claim had now been received “which is a barrier to her return”, but added:
“a request has been made to have this allocated and expedited and we await confirmation on Acknowledgment of Service date (AoS), an outcome is expected 4-6 weeks from this date”
. The recommendation was “maintaining detention to continue to expedite the Judicial Review” and the conclusion was that detention “serves a legitimate purpose … whilst we confirm outcome of the JR”, in circumstances where the JR was “deemed defensible”. In the event, bail was being sought and was secured on 2 May 2017. The judicial review proceedings were never expedited and themselves became focused solely on the legality of the detention to 2 May 2017, none of which is surprising.[47]In my judgment, the Secretary of State took an objectively justifiable position, at the time and in all the circumstances, from 30 March 2017 through to 2 May 2017, giving proper consideration to barriers to removability of the claimant within a reasonable time. The executive deprivation of liberty calls for close and careful scrutiny, by the executive and then the Court. The onus in on the Secretary of State. But she has a primary decision-maker’s latitude for judgment, and evaluating her historic actions through the prism of hindsight is inapt. This was a fast-moving situation. The Secretary of State was considering the substance of what was being said on behalf of the claimant as to removability, and she was responding firmly and promptly. She was giving repeated, and informed, review to the legitimacy of the detention, considering all relevant factors and the question of obstacles to prompt removal. This is not a case in which it was or should have been apparent to the Secretary of State at an identifiable stage prior to 2 May 2017 that removal within a reasonable time was not possible.

THE RED.004 POINT

[48]The fifth and final reason relied on by the claimant is that the removal notification (form RED.004) dated 14 March 2017 was not seen by her. Instead, it is said that she appeared at the Croydon reporting centre on 30 March 2017 and was informed that removal directions had been set for that same day, by being handed a letter dated 21 March 2017 referring to that removal date. The claimant says this means the Secretary of State failed to give the minimum period of notice required by published policy, and so by law, with the consequence that the immigration detention was unlawful. As to published policy, the claimant relied on chapter 60 of the 2016 edition of the Enforcement Instructions and Guidance and the 72-hour minimum notice period described at §2.4.1.[49]The Secretary of State’s position is that the RED.004 notification was sent to the claimant by post and signed for by her from a post office on 21 March 2017, and that notification of the removal window is sufficient so that the letter of 21 March 2017 did not need to be separately sent. I was referred to section 2 (notice of removal) which records that “only one” of two forms – notice of a removal window and notice of removal directions – is necessary. This is reflected in RED.004 itself which describes removal “without further notice”.[50]It is clear from the contemporaneous documents that the Secretary of State intended to effectively notify the removal window, by providing form RED.004 promptly. A chronology in the detention review of 6 April 2017 records RED.004 of 14 March 2017 as having been served. A Royal Mail proof of delivery records the RED.004 posted to the claimant as not having been successfully delivered to her home address, but as having been received at the Croydon delivery office on 17 March 2017 and signed for on 21 March 2017 when the “recipient collected” it. There is no reason to doubt that the claimant was “the recipient’ named on the envelope. There is no witness statement from the claimant on this point, but there is a statement from her solicitor stating that “the claimant has … confirmed that she does not recall receiving” this document. The claimant’s solicitor’s statement also records that no copy of the RED.004 was received by fax from the Home Office, and it appears from the latest response from the Secretary of State that this was “sent to the claimant’s previous solicitors”.[51]In my judgment, the correct position is as follows.(1) It is sufficient, for the purposes of the Home Office policies which I was shown, if notification of a removal window in form RED.004 were provided to the claimant or her solicitors.(2) The essential function of prior notice has been identified as being to secure rights of access to justice: see the Tracey case cited above, at §38.(3) Even if the RED.004 which on the documentary evidence was collected by the named recipient (the claimant) from the Croydon delivery office on 21 March 2017 was not seen by her, the question of notification would be relevant to whether she could be removed on 30 March 2017.(4) On that question, the claimant’s solicitors were able through speedy access to justice to stay the removal on that date.(5) It does not follow that the claimant’s immigration detention was unlawful by reason of not being removable within a reasonable time, which would involve a new removal date.(6) That question depends on the other procedural obstacles and questions of notification would arise in the context of new removal directions and a new removal date.(7) Viewed from the Secretary of State’s position, the conclusion could properly be reached that the claimant had been served with the RED.004 form in this case.[52]Those conclusions are sufficient to determine this issue, insofar as it concerns the legality of detention which is the only matter before me in these proceedings. I will add, however, that I would not have been able to conclude in the claimant’s favour that form RED.004 was not received by her, given the contemporaneous documents and the absence of a witness statement from her on the point. Nor in the circumstances would I have acceded to any application for live evidence and cross-examination, given the analysis on this point which I have set out above, and given that this was one of several points raised by the claimant only during the hearing before me.

DISPOSAL

[53]For the reasons which I have given, this claim for judicial review is dismissed.[54]I make no order as to costs, having heard submissions from the parties on what the appropriate costs order would be on the various hypotheses. My reason for depriving the Secretary of State of the costs order that would normally follow the event is that this is the course of action which is available and appropriate to mark the Court’s disapproval of the clear and inexcusable default (§4 above) in filing her detained grounds and evidence within the time-frame required by the rules and the directions of the Court. As I explained at the outset of this judgment, I was prepared to allow her to participate with written evidence, written submissions and oral submissions. I am conscious that I allowed the claimant latitude as to the arguments raised at the hearing, including in the light of the Secretary of State’s late evidence, and in post-hearing submissions and materials. That notwithstanding, the appropriate order is no order for costs having regard to all the circumstances, including the Secretary of State’s default and the need for an appropriate judicial response to it.

Cited in 4 later judgments