MS, R (on the application of) v Secretary of State for the Home Department

MRS JUSTICE DOBBS: This is an application for permission to apply for judicial review and interim relief in the form of bail. The claimant is a national of Nigeria who claims to have arrived in this country in March of 2006. She challenges the decision of the defendant, dated 27th April 2007, serving her with a deportation order. She was arrested at Heathrow on 19th March with a false passport, attempting to board a flight to Canada. She was convicted of attempted deception and as a result of that arrest, sentenced to eight months' imprisonment on 21st April. She was recommended for deportation by the court and served with the decision to make a deportation order on 17th July 2006. She claimed asylum. A screening interview was conducted in December 2006 and the asylum interview was on 7th December. She has been in custody ever since. The operative date of custody for the purposes of this review is 19th July 2006, so it follows from this, that she has been in custody in relation to immigration matters since 19th July 2006.

There was one main ground in relation to the challenge which was, that the claimant was not lawfully detained under paragraph 2.2 of schedule 3 of the Immigration Act 1971. I need not spend long on this, because the defendant accepts, for the purposes of the application for permission, that it is arguable that it was not lawful. Indeed, the defendant has withdrawn the original notice of intention to deport and revoked the original deportation order on the grounds of non-compliance and has issued, on the 26th of this month a new notice of intention to deport.

Relief is also sought in the application for a declaration that the claimant be effectively given a right of appeal re her asylum claim. It is now conceded today that there are no grounds for granting permission on that aspect and therefore it will go no further.

I turn to deal with the question of interim relief in the form of bail. The objections to bail are that the claimant has shown a complete disregard for immigration law in the past, she has used deception in the past and may continue to do so. She now has the decision of the intention to deport her. It has not been challenged yet and she has no incentive to comply with the conditions. She only claimed asylum after being apprehended and not on entry. She has attempted to obstruct the removal process by refusing to comply with the emergency travel documentation. She has no known close ties in the UK which would provide her with an incentive to remain. The defendant also deals with the claimant's observations and submissions and submits that just because the claimant has been unlawfully detained for a year it does not give her a right to release. She is now lawfully detained under a new notice of intention to deport and in any event she can get damages. It is also said that should she appeal, then the Secretary of State will reconsider the question of bail. If bail is to be granted, the Secretary of State asks for strict conditions.

The claimant submits that the reading of Chapter 38 of the Secretary of State's own operational enforcement manual shows, inter alia, that she is not suitable for detention because she falls under one of the exceptions to detention -- that of being somebody who has been the victim of torture or is unsuitable by reason of their mental illness. No assessment, it is said, has been done by the Secretary of State as to her suitability. It is clear from the paperwork that she has a history of suicide and self harm; it also is clear from the medical reports. There is evidence of scars which are consistent with her description of torture. She has indicated at all the bail hearings what her particular state of mind is, namely that of self harming and thoughts of suicide. There is independent evidence that, in March and April, she had not eaten for ten days. It is said that the Secretary of State has failed take into account any of these factors and given no consideration to her health. She has, it can be seen from the papers, received counselling during her criminal sentence and subsequently. There are clear problems. It is also clear, and it has not been challenged by the Secretary of State, that she is a victim of trafficking.

It is pointed out by the claimant that she was going to seek protection in Canada and not in this country and then, when she was arrested, she immediately sought asylum in this country. This now gives her, as a result of the recent notice of intention to deport, a right of appeal, including an asylum and human rights appeal. She has an incentive to pursue those proceedings now and an incentive, in the light of the JR proceedings, where damages may be recoverable. The Secretary of State has written to the court saying that she is considering making a settlement.

The claimant has been in custody for a year now in relation to this issue. This is the equivalent of a two year sentence of imprisonment. Given that permission has been granted, it means that there will be further delay before her case is considered, unless the Secretary of State, in the meantime, compromises the case. It is certainly unlikely to be considered during the long vacation. No deportation order has been issued. The notice of intention to deport has been served only very recently, but it is quite clear, and it is confirmed, that there will be an appeal in the light of that notice. The claimant clearly, from the documentation before the court, has some mental health issues. There seems to have been no consideration at all by the Secretary of State as to this aspect. Given that the Secretary of State has withdrawn the previous documentation (accepting that they were non-compliant) one would have expected a proper review to have been made, particularly in the light of the fact that the claimant has already been in custody for a year. I note from the document I have been provided with, in chapter 38, that the Secretary of State's own policy is that there should be a presumption for temporary release and that alternatives to custody should be looked for where at all possible. It seems to me that this claimant does have an incentive to remain and pursue her appeal and also to pursue damages which the Secretary of State has indicated may be forthcoming.

There is now a place available at the Medaille Trust in Walthamstow, a trust which provides six beds, with 24-hour supervision, two staff per shift, including night duty, and a trust which, it is clear from the letter, already has two women who are subject to outstanding immigration proceedings. The claimant would be subject to the conditions set out by the Trust. She would also be accompanied to report to immigration, should reporting be necessary, and the Trust always reports immediately any person to immigration who may go missing.

I have heard from Jennifer McClelland, who is prepared to stand surety. She is somebody who has worked a number of years with a member of Parliament. She met this claimant in February of this year and has been in contact with her ever since. This is in the context of doing voluntary work through the Bail Circle, dealing with people in detention who have no other family or links. She visited this claimant, has befriended her and has also encouraged her friends to befriend the claimant. She envisages regular contact between herself and the claimant and also regular visiting. She would be prepared to accompany the claimant to sign on as regularly as that is needed. Her husband, with whom she has a joint account, is aware of the fact that she is putting herself up as a surety and does not object. She is prepared to stand in the sum of £1,500.

I have considered this matter and it seems to me, for the reason that I have already set out, that this is a case where bail can be granted with the condition of residence at the Medaille Trust at the address given, which is the Presbytery, S Street, , and that there will be a surety in the sum of £1,500 in the form of Jennifer McClelland and that there shall be regular reporting to the immigration office local to that address, which is B House, London . There will be weekly reporting in this claimant's case but I will say that it should be on a Tuesday so that that at least will fall in with reporting by two others at the Medaille Trust, so that it makes for less inconvenience for the staff who will accompany them to report. I have considered the issue of tagging and in my view this is not a case where it is necessary to employ the use of a tag.

The only thing I need to ask Mr Singh is whether you still wish to have time to check the surety, having seen her in court?

MR SINGH: Yes, my Lady.

MS CHANDRAN: My Lady, may I just comment, without wishing to interrupt, that what I understand is that the Medaille Trust is on hold today until 6 o'clock to take receipt of the claimant. Because there are only six beds it is a very changing --

MRS JUSTICE DOBBS: Well, Ms McClelland is here. She can give her date of birth, which is what the defendant will need, to those assisting counsel now. The checks can be made very quickly. It seems to me they can be made very quickly.

MS CHANDRAN: So, my Lady, just to ascertain: release of the claimant should take place today subject to conditions which should take place quickly. If one were to impose a condition of time on that, could that be by 2 o'clock, because she has to get down from Yarls Wood and there is someone from Medical Justice who is going to accompany her down.

MRS JUSTICE DOBBS: They can get on with them. It is highly unlikely, Mr Singh, that someone who was worked for a MP for a number of years -- but I think one starts with a assumption, it does not necessarily follow, that it is the CRO that is the issue. But if you want the witness to go back into the witness box and deal with her, whether she has any criminal convictions on oath, we can deal with that.

MR SINGH: My Lady, I suppose what I can do now is I can arrange for somebody from the Home Office who deals with the checks to be contacted. I can do that now and we can come back to you or we could just impose a deadline.

MRS JUSTICE DOBBS: I will impose a deadline. What is the latest time by which she has to leave?

MS CHANDRAN: I would ask for a deadline by 1 o'clock or 1.30 because it takes some time for her to be processed to get out at Yarls Wood.

MRS JUSTICE DOBBS: Well, they can start processing.

MS CHANDRAN: Can they start processing?

MR SINGH: I have to be honest, I have no idea.

MRS JUSTICE DOBBS: I am going to give you until 2 o'clock but I want you to get on with it because it should have been done at the last hearing when the surety turned up at Yarls Wood. The defendant should have done it then. So I am not very sympathetic to the defendant's needs to check.

MS CHANDRAN: So, in view of the next steps, my Lady, I guess --

MRS JUSTICE DOBBS: That if Ms McClelland can give the defendant's representative her date of birth --

MS CHANDRAN: He has her passport.

MRS JUSTICE DOBBS: Then you can get on with it.

MS CHANDRAN: My Lady, I wonder whether this would be an appropriate case where costs should be awarded at this stage, as there is very clearly --

MRS JUSTICE DOBBS: No, I am not going entertain arguments about costs at this stage.

MS CHANDRAN: I am grateful, my Lady.

MR SINGH: Thank you, my Lady.