Barrow v Secretary of State for the Home Department

This is an appeal, with permission being granted by Rix LJ, against a decision of Collins J sitting in the Administrative Court, which decision was given as long ago as 8 September 2009. The decision was made after a hearing which had previously been directed to be heard as a rolled-up hearing. The actual Order of Collins J, in the ultimate form in which it was drawn up, and dated 11 January 2010, stated this in the first paragraph:

“It is ordered as follows:

1.

Permission to apply for judicial review is granted, limited to the issue of whether the claimant should now be granted bail.”

That order therefore, as drawn up, granted the claimant, who is the appellant now, permission to apply for judicial review but limited to that issue of whether he should be granted bail.

It would seem that very little in the way of substantive evidence had been placed before Collins J, notwithstanding that the matter had been directed to be heard as a rolled-up hearing.

For reasons which will shortly emerge, I do not think it necessary to set out the background in any great detail. It is sufficient to indicate that this case has a very long history; indeed the notification of intention to deport the claimant was given as long ago as 6 August 2004, the claimant having been born in Somalia and it being proposed to deport him to Somalia via Mogadishu.

There were appeal proceedings in front of the tribunal, in both of which appeals the claimant was unsuccessful. It may be noted that the reason why the Secretary of State had indicated an intention to deport was on conducive grounds, the claimant having a number of previous convictions. Ms Jegarajah, on his behalf, would suggest that these are not of the most serious kind, although they include numerous convictions for driving whilst disqualified or whilst drunk and also include a conviction for quite a nasty sexual assault.

At all events, as from 11 June 2007 the claimant was held in immigration detention under Schedule 3 of the Immigration Act 1971. On 14 April 2008 removal directions to Somalia via Mogadishu were set for 14 May 2008. However, the claimant then made a Rule 39 request to the European Court of Human Rights which was acceded to on 9 May 2008. Since it was and is the policy of the Home Secretary to abide by such indications, the position thus was that the claimant could not be deported to Somalia without further notice. He remained in detention.

Subsequently he made two applications for bail, both of which failed. The latter failure then prompted judicial review proceedings issued on 12 August 2009. By that time the claimant had been in detention for some 26 months. The particular point argued on his behalf was that after the Rule 39 indication there was no prospect of him being released within a reasonable time and he should have been released very shortly after the date of that indication being given.

It was pointed out that the Rule 39 indication had been in place itself for some 15 months previously, and further that regard should be had to the totality of the delay at the time the matter came on before Collins J.

Collins J gave a short judgment, and none the worse for that. He of course has very great experience in cases of this kind. In paragraph 8 of his judgment he alluded to extant litigation concerning the principles relating to returns to Somalia and expressed concern that the relevant issues relating to removal to Somalia via Mogadishu might take some time to resolve, given then current proceedings pending in the Court of Appeal and, further, the indications that the matter would end up with a final resolution in Strasbourg: as has indeed turned out to be the case.

The judge noted the submission made by reference to the Rule 39 indication and also described the claimant as being a “pest” rather than a real danger. The core reasoning of the judge is in paragraph 12 and is to this effect:

“It was hoped, and understandably hoped, in the light of the domestic authorities which have all gone one way that the upshot would be and would in a reasonable time be that the claimant could be removed to Somalia. In those circumstances I am satisfied that it is not possible to say and it is certainly not arguable that the detention hitherto has been in any way unlawful. […] However the time has come, after 26 months, when one does seriously have to consider whether further detention is really justifiable. In my judgment that time has now been reached in the circumstances of this case. I emphasise that it is not a question of saying that two years is the limit or 26 months is the limit. In individual cases everything will turn upon the circumstances. But the court will be more concerned for obvious reasons the longer the detention has taken place. The court becomes particularly concerned when detentions of two years or more are in issue.”

He therefore directed the release of the claimant on terms as to bail. Of course he had indicated that he rejected as unarguable the proposition that prior detention had been in any way unlawful.

Mr Kovats QC on behalf of the respondent Secretary of State says those were matters of factual evaluation for the trial judge, which the court should respect, and there is nothing to indicate that the judge made any error in his legal approach or any error as to his assessment of the facts or in his reasoning. Ms Jegarajah, on the other hand, submits the judge reached a wrong conclusion on that. She has further relied on subsequent authorities, notably (amongst others) the well-known cases of R (Abdi) v Home Secretary [2009] EWCA 1324 (Admin) in the Court of Appeal and R (Lumba) v Home Secretary [2011] 2 WLR 671 in the Supreme Court, and also a further decision of the court in a case called R (AR) [2011] EWCA Civ 857, as indicating that the judge’s assessment had been wrong.

As it seems to me, and reflecting the way in which Collins J was at the time approaching the matter and as reflected by the form of the Order as actually drawn up, what Collins J was doing was deciding that the claim for prior unlawful detention and the claim for damages were “certainly not arguable”. That is consistent with him saying, in effect, that permission would be refused. It is true that in subsequent debate, he having indicated that was his intention, the discussion may have indicated that he may have had it in mind to dismiss the proceedings substantively. But in the event that is most certainly not what the Order as drawn up says.

In those circumstances, and given all the various arguments that Ms Jegarajah has raised, one has to ask oneself the question of whether the judge’s evaluation that the claim of unlawful detention and the claim for damages were unarguable was correct. I am not in the slightest bit impressed at the moment by Ms Jegarajah’s attack on the decision as being perverse, and I am also not impressed by her argument as to lack of reasoning. The real question, as it seems to me, is whether or not there was an arguable case here and whether the judge got it wrong in that respect, it being stressed of course that he did not have the benefit of subsequent authorities which were decided or reported after he gave his decision.

Although both counsel at stages have indicated to us that they thought the matter was being heard substantively by Collins J on this point, that does not seem to me to reflect the reality of the position. I take the view, and I do not for myself wish to elaborate further, that, having heard the points raised both by Ms Jegarajah and by Mr Kovats, the position was indeed arguable. I say no more than that; I say no less than that. It seems to me in those circumstances – and I have to say rather unsatisfactory circumstances as they have been developed before us – the appropriate thing to do is to allow the appeal to the extent of granting permission to apply for judicial review on the points relating to unlawful detention and damages and to remit the matter back for further consideration by a High Court judge in the Administrative Court. That is the course I would propose in this case.

I would only add that this court has been deluged with a vast number of authorities, to scarcely any of which it was necessary to refer; and the presentation of the appeal bundles with all respect, and I am sure Ms Jegarajah herself did her best to try and sort it out, has been lamentable.

I agree.

I also agree.