Lemtelsi, R (On the Application Of) v Secretary of State for the Home Department

LORD JUSTICE AIKENS: This is a renewed application for permission to appeal following the refusal to grant permission to appeal on the papers by Vos LJ. The claim relates to a challenge by way of judicial review to a decision by the respondent that the applicant, Mr Lemtelsi, could be detained under powers contained within immigration legislation after the custodial part of the term of imprisonment imposed on him had expired on 15 September 2012. That detention continued until 7 January 2014 when he was granted bail. The applicant has sought damages.

The principles under which the power of administrative detention may be exercised and the limitations and controls imposed have been settled since the decision of Woolf J, as he then was, in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. Those principles were considered, approved and restated by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. There is, therefore, no doubt as to the principles which are to be applied. They are summarised in the present case in the judgment of His Honour Judge Heaton QC who gave judgment on the challenge in this case on 15 July 2014. The principles are summarised at paragraph 62 of that judgment and those principles are not and, indeed, cannot be challenged.

This is an application in respect of a second appeal. It seems to me that it is impossible for Ms Meredith to assert that there is an important point of principle or practice that arises in this case. It is well established that that requirement in respect of a second appeal is not satisfied where it is said that there has been an error in the application of well-established principles: there has to be effectively some new point that arises. Nevertheless, Ms Meredith submits that there are other compelling reasons why the Court of Appeal should hear this case.

Effectively, what Ms Meredith founds on are two particular aspects of the facts of this case. The first is that there was a delay in respect of initiating the process of obtaining emergency travel documents for Mr Lemtelsi in order that he could be deported to Morocco. It is well known that in cases where there are no identity documents, it takes a period of between 12 and 24 months to obtain emergency travel documents through the Moroccan authorities. It is said that there was a delay between (at least) February 2012 and July 2012 and possibly from as early as December 2011. That was accepted by the judge, but Ms Meredith says that the judge failed to appreciate that that delay must have constituted illegality rather than simply administrative inefficiency.

Secondly, Ms Meredith emphasises the fact that this particular applicant indicated at an early stage that he was keen to be repatriated and that he took positive steps to co-operate in order that that could be done. It is accepted on his behalf that the applicant was a person who might abscond and who might reoffend in the manner that had led him to be imprisoned in the first place. But, it is submitted, there is a compelling reason why this issue of the balance between those two factors was wrongly struck in this case. Effectively it is said that the judge wrongly took the view that the risk of absconding and risk of re-offending was the answer to the detention period.

I cannot accept that either of those arguments provide compelling reasons why the Court of Appeal should hear this case. This is a case which, as Ms Meredith herself accepted in submissions this morning, is one to be decided on its own facts like every other detention case. The judge had the facts well in mind, and he had the principles that have been set out now for 30 years well in mind. In my judgment this is not, therefore, a case which is fit for permission to appeal to be granted in what would be a second appeal. Despite Ms Meredith's sustained efforts, therefore, I must refuse permission.