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

The claimant, a national of Iraq, was convicted in August 2005 of two counts of detaining a child without lawful authority and sentenced in September 2005 to 2 years 4 months imprisonment in a Young Offenders’ institution. On 8 May 2006, he was released on licence but his detention was continued under immigration powers. On 5 March 2009, he applied for bail. On 16 March 2009, his application for accommodation under section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) was accepted and a bail address provided. He was granted bail on 26 March 2009.

Fourteen months later, on 18 May 2010, the claimant was re-detained under immigration powers. Between 12 July 2010 (or thereabouts) and 25 March 2011, he and his representatives made five applications for s.4 accommodation. It was not until 10 November 2011 that the defendant offered him accommodation. This was after a hearing had taken place (on 20 October 2011) before Irwin J when directions were issued for the defendant to serve a witness statement detailing the steps by then taken to obtain a s.4 address, the steps that would then be taken to obtain a s.4 address and, if possible, a decision as to whether and if so when the claimant would be removed. As a consequence, on 4 November 2011, the defendant lodged a witness statement from Ms. Linda Hopkins, Assistant Director on the NAM+ Routing, London and South East Initial Accommodation and Section 4 Bail Team providing that part of the information which is set out at para 11 below in italics. On 9 November 2011, the claimant applied for bail to the First-tier Tribunal (Immigration and Asylum Chamber) (FtT). On 15 November 2011, bail was granted by a judge of the FtT.

On 7 February 2012, Mr. John Bowers QC sitting as Deputy High Court Judge granted the claimant permission on the following issues:

In addition, Ms. Naik sought permission at the hearing on 30 July 2013 as follows:

Having heard the submissions of the parties de bene esse, I have decided to refuse permission on the Article 5(4) issue. It follows that permission to amend the claim to add the remedy of aggravated or exemplary damages is also refused. My reasons are given below.

The reason why Ms. Naik was constrained to seek permission to rely on Article 5 in limited terms is that at the permission hearing on 7 February 2012, Mr. John Bowers QC sitting as a Deputy High Court Judge refused permission on all grounds save for the s.4 argument. The Court of Appeal rejected a subsequent attempt to renew the application for permission in R (SG and OR (Iraq)) v. Secretary of State for the Home Department [2012] EWCA Civ 940, [2013] 1 WLR 41. The claimant is OR (Iraq) in SG and OR (Iraq). This is the leading authority on the granting of injunctions pending the determination of country guidance appeals.

Amongst the documents disclosed by the defendant to the claimant are notes on a computer file called “GCID – Case Record sheet”. “GCID” stands for “General Case Information Database”. The entry for 23 December 2010 (A341) states: “… the subject is not suitable for initial accommodation. He should not be housed near schools or parks”. On 11 January 2011, the Case Owner handling the claimant's s.4 application said that the claimant “should not be placed near parks and schools”. The GCID entry for 6 April 2011 states: “section 4 bail support provided 3 bail addresses. Unfortunately all 3 were withing [sic] 0.5 of a mile from both primary and secondary schools. We would want the accommodation to be no closer then [sic] 3 mile radius from schools.”

It is not in dispute that the accommodation that the claimant was eventually offered on 10 November 2011 and to which he was released on bail did not comply with the criterion of being at least three miles away from schools and parks.

The claimant’s case on the s.4 accommodation issue is that the defendant acted unreasonably in handling his application for a bail address, in that she exercised her discretion unreasonably in imposing a condition that any accommodation offered to him must not be within three miles of any schools or parks. He asserts that the fact that the discretion was exercised unreasonably is shown by the following:

In relation to the claimant’s detention from May 2006 until March 2009, the chronology of relevant events is as follows:

In relation to the claimant's detention from 18 May 2010 until 15 November 2011, the relevant facts are set out below. The notes in italics are based on para 6 of the statement of Ms. Hopkins. It is appropriate to say at this point that the first sentence of para 6 of the statement incorrectly states that the claimant's first application for a bail address was made on or about 17 August 2010. Mr. Blundell accepted that the first application was made on or about 12 July 2010:

The procedural history of this case prior to the hearing on 30 July 2013 is long and complex. It is set out at paras 16 to 32 of the Court of Appeal’s judgment in SG and OR (Iraq). It is not necessary to repeat that history here.

Towards the end of the hearing on 30 July 2013, I noticed that the policy document described as “Asylum Instruction” (hereafter “AI”) that was included at tab 7 of the “Authorities bundle” was version 8 that was in force from 22 February 2011. It was clear that I had not been provided with the version in force in March 2009 and all of the versions which applied during the period from May 2010 to November 2011. Accordingly, with the agreement of Ms. Naik and Mr. Blundell, I issued directions for the defendant to submit the missing policies.

On 1 August 2013, Mr. Blundell served a “Post-hearing note on policy” and a “Policies bundle” containing versions 4, 6 and 7 of the AI (see para 33 below). The Post-hearing note explained in brief the differences between these policies insofar as relevant to the issues in this case. In particular, it was stated that the version in force in March 2009 (version 4) did not contain any reference to assessing the suitability of accommodation for those who have served criminal sentences of imprisonment, nor did it contain any reference to the particular situation of children or to s.55 of the Borders, Citizenship & Immigration Act 2009 (“the 2009 Act”). Para 5 of the Post-hearing note then states:

“The absence of any reference to these matters explains why the Claimant was released in 2009 without the same focus on the suitability of his accommodation and the need to accommodate him as far away as possible (and later, 3 miles away) from schools and playgrounds. It is also explained by the fact that section 5 of the 2009 did not come into force until 2 November 2009.” (my emphasis)

In her reply to the Post-hearing note, Ms. Naik drew attention to the possible shift in the defendant’s case, from her earlier position (that the justification for the perceived difference in treatment of the claimant’s s.4 applications in March 2009 and in July 2010-November 2011 was the diverse but rational views of different caseworkers) to one which relied upon a material policy change due to a change in the statutory framework. Ms. Naik submitted that such a change in the defendant’s position constituted a wholesale change in her case. It amounted to an application to substantially amend the defence after the close of the case. Ms. Naik submitted that this was impermissible without the hearing being reconvened and further evidence being filed. She submitted that any such amendment would sound in costs in any event.

I directed the matter to be re-listed for hearing on the first available date; any application by the defendant to amend her case to be made on or before 23 August; and any application by the claimant to cross-examine Ms. Hopkins to be made on or before 30 August 2013.

The defendant did not make an application to amend her case.

On 22 August 2013, Ms. Naik applied to cross-examine Ms. Hopkins. By an order dated 18 October 2013, I refused the application, stating that, given that the defendant had not made an application to amend her case and that the parties had closed their respective cases at the previous hearing, the grounds did not provide any satisfactory reasons to permit cross-examination.

The case was re-listed for hearing on 25 October. Mr. Blundell’s skeleton argument confirmed that the defendant did not seek to amend her case.

However, Mr. Blundell’s skeleton argument also stated that, having reviewed the Post-hearing note, the defendant accepted that the use of the word “explains” at para 5 of the Post-hearing note could be understood as putting her case too high. Given that there was no express reference in the papers to the reasons for the distinction between the terms of the release on the two occasions, the defendant could not submit that this was definitely the reason for the difference and had not intended to do so. The defendant therefore sought to replace “explains” in line 1 of para 5 of the Post-hearing note with “may explain”.

At the hearing, Ms. Naik submitted that the Post-hearing note and the submission of the Policies bundle amounted to an amendment of the defendant’s case even if this was denied. She did not specifically engage with the arguments in Mr. Blundell’s skeleton argument, summarised in the preceding paragraph.

I agree with Mr. Blundell that the defendant’s case has not changed with the submission of the Policies bundle and the Post-hearing note (as amended). It is plain that it has always been the position of the defendant that the difference between the treatment of the requests for a bail address in 2009 and in 2010/2011 was explained by the decisions being made by two different caseworkers on two different occasions and that the policies in place provided the context within which the decisions were made and may explain the different treatment. I say this for the following reasons:

I am satisfied that, rather than amending her case, the defendant had simply overlooked placing before the court copies of all the relevant policies. The change in policy in June 2009 and the advent of the s.55 duty had already been mentioned in the “summary grounds for contesting the claim”. Any potential prejudice arising as a result of this oversight in placing before the court copies of all relevant policies was adequately addressed by the claimant being given a full opportunity to address the court in writing as well as at a hearing on 25 October 2013. I will deal with those submissions below.

At the hearing on 25 October, Ms. Naik renewed the application to cross-examine Ms. Hopkins. I refused the application. My reasons are as follows:

S.4 of the 1999 Act insofar as relevant provides:

“(1)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons—

…

(c)

released on bail from detention under any provision provision of the Immigration Acts.

(2)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—

(a)

he was (but no longer is) an asylum-seeker, and (b) his claim for asylum was rejected.”

I was referred to the judgment of Nicol J in Razai & Ors v Secretary of State for the Home Department [2010] EWHC 3151(Admin) (02 December2010), from which it can be seen that the process for handling applications for a bail address under s.4 changed from June 2009 as was said in the instant case in the “summary grounds for contesting the claim”. Until then, the Secretary of State’s practice was to respond to an application for a bail address within a few days and to allocate accommodation which could be used by the detainee on a long-term basis if bail was granted. The Secretary of State concluded that this system was costly and inefficient (para 30). The new system introduced from June 2009 was that Initial Accommodation was arranged where a detainee who was granted bail could expect to live for two weeks or so while appropriate long-term Dispersal Accommodation was arranged (para 31).

This threw up a problem as the Secretary of State came to realise that it was not appropriate for detainees who were assessed as ‘high risk’ to share facilities with residents. The fact that there was a very limited supply of self-contained single occupancy accommodation that was regarded as suitable for ‘high risk’ cases prompted two things: a risk analysis for each individual case and a degree of negotiation and persuasion with the existing contractors (para 32). The result was that for high risk cases, rather than a bail address being given within a few days of application, the process could take weeks, months and in some cases lead to outright refusal by the Secretary of State to provide accommodation (para 33).

The guidance to caseworkers on the s.4 bail team in assessing whether an individual was high risk was contained in unpublished parts of the policies applicable from January 2010. These were disclosed to the court during the course of the proceedings in Razai (paras 35, 36, 38 and 39). In the hitherto unpublished parts of the policy introduced in January 2010, the standard process for deciding s.4 applications was displaced and the interim process specified in “Serious Offenders” used instead if the applicant had been convicted of a serious offence “such as murder, extreme violence, or sexual offences” (para 35). In a subsequent policy, introduced in October 2010 (para 37), the unpublished part required caseworkers to consider whether the applicant had a criminal conviction for, or whether there was reliable evidence that the applicant had committed, a “violent, sexual or serious drug offence (bar minor possession)” (para 38).

If a detainee was assessed as being at high risk so that he/she was considered unsuitable for an immediate offer of Initial Accommodation, delays of weeks or months could occur in any offer of accommodation being made, if it is made (paras 3 and 85).

Razai indicates that it was a possibility, under the terms of the Secretary of State’s policies, that it may not be possible in an individual case to offer s.4 accommodation (para 77). Para 96 of the judgment in Razai states that the Secretary of State accepted that in theory one-off contracts could be negotiated to provide bail addresses for all high risk cases but that this would be disproportionately expensive and burdensome to manage.

The principles to be derived from Razai (insofar as relevant to the issues is this case) can be stated as follows:

Further, at paras 85, 87 and 99, Nicol J said:

“85.

…even a provisional decision, that a detainee is not suitable for an immediate offer of Initial Accommodation, was of such significance that fairness does require the Secretary of State to tell the applicant that is what she has in mind and why. That is because of the stark difference between the time that it takes to offer Initial Accommodation as a bail address (only a few days) and the delays that can occur if Initial Accommodation is not offered (on the evidence, delays of weeks or months). Fairness also requires the SSHD to take into account any representations that are made in response….

87.

… the detainee needed to be in a position to know whether he can properly challenge the Secretary of State’s decision to detain him in the courts by way of an application for habeas corpus or judicial review or whether he can apply for bail on a meaningful basis. The reason why the detainee needs to know why he is regarded as a high risk case, on the other hand, is so that he can make submissions to the contrary to the SSHD or, I suppose, to decide whether there are grounds to challenge the legality of the decision not to treat him as suitable for Initial Accommodation. I also agree that the inexactness of the match between reasons for detaining the person concerned and the reasons why Initial Accommodation is thought to be unsuitable and the desirability of clarity mean that the detention reviews are no substitute for the information which I consider the SSHD is lawfully obliged to provide to an applicant who is not thought to be suitable for Initial Accommodation.

99.

I also agree with Mr Johnson that a declaration in favour of Mr Rashid and Mr Draga (even if otherwise justified) would serve no purpose and, for that reason, should not be considered. I say ‘even if otherwise justified’ because, while it is not necessary for me to make a definitive ruling, there is force in the more general submissions which Mr Johnson made. This was a policy in evolution. Its impact on high risk detainees had not been foreseen, but, when identified, some steps were taken to address it. Notably, in the summer of 2010, there was a reappraisal of some of the cases which had previously been identified as requiring self- contained accommodation and offers of Initial Accommodation were made instead. Steps are being taken to expand the amount of self-contained accommodation that is available. But, as the Claimants accept, the amount of available resources, is a real constraint which the Court cannot ignore. It would seem that the completion of some pro formas is taking very much longer than the policy itself says is appropriate. The reasons for this are not very clear, but, here too, the SSHD appears to be taking steps to deal with the issue. In any case, as Carnwarth LJ emphasised, maladministration and muddle have to be distinguished from illegality.”

The Post-hearing note and the Policies bundle submitted by Mr. Blundell show that the following policies applied at the times stated below:

Version 4 did not mention s.55 of the 2009 Act by which the best interests of children had to be considered. Neither did version 6, although s.55 had already come into force in November 2009.

Version 4 did not mention the need for a caseworker to assess the suitability of accommodation for those who have served criminal offences. However, versions 6, 7 and 8 did, although in different terms, as Razai indicates. Version 6 required caseworkers to consider whether the applicant had been convicted of a serious offence “such as murder, extreme violence, or sexual offences” and versions 7 and 8 required caseworkers to consider whether the applicant had a criminal conviction for, or whether there was reliable evidence that the applicant had committed, a “violent, sexual or serious drug offence (bar minor possession)”. If the answer was yes, then, as stated in Razai, the standard process (which resulted in an immediate offer of accommodation on Initial Accommodation) was displaced in favour of a different process by which the caseworker was required to obtain further information from the applicant’s Criminal Casework Directorate Case Owner (to be distinguished from the caseworker in the s.4 bail team) in order to arrange suitable bail accommodation if appropriate. It was the Case Owner who had overall responsibility for ensuring that appropriate bail accommodation was arranged. We know from Razai that, where this happened, delays of weeks or months could occur before any offer of accommodation is made, if it is made.

Before I turn to consider the case advanced on the claimant's behalf I should point out that Ms. Naik accepted that the defendant had not actually refused the claimant's application for a bail address at any point, notwithstanding the repeated references in her skeleton argument of the hearing on 30 July 2013 to the defendant having done so.

The challenge brought against the defendant’s treatment of the claimant's application for a bail address is a rationality challenge, i.e. that the defendant acted unreasonably in imposing the conditions that were imposed on any accommodation that was to be offered to him and that, by doing so, there had been an unlawful delay in the handling of his application for a bail address.

In support of the argument that the defendant acted unreasonably in imposing the said conditions, Ms. Naik relies upon the arguments set out in para 9 above. In essence, she seeks to compare the time that was taken to offer the claimant accommodation in March 2009 and in response to his applications in 2010/2011; the accommodation the claimant was offered in March 2009 with the accommodation he was offered in November 2011; the risk of harm, re-offending and absconding that the claimant posed in March 2009 and in November 2011; and that (in her submission) the claimant had not had any criminal convictions or convictions recorded against him during the 14-month period between his release in March 2009 and his re-detention in May 2010 when he lived at the address to which he had been bailed and he reported as required.

The claimant’s arguments are fundamentally misconceived. This can be demonstrated by assuming for the purposes of argument that there were no changes in the defendant’s policy for handling applications for a bail address and allocating appropriate accommodation (which, of course, is not the case, as stated above). If there had been no change in policy and no change in the statutory regime so that all things remained equal, the mere fact that two caseworkers reached different decisions does not mean that the one who imposed restrictions on the type of accommodation that could be offered is the one who acted unreasonably in doing so. Indeed, there is more reason in this particular case to say that it was unreasonable for the first caseworker not to have imposed any such restrictions, especially given the claimant’s convictions and the fact that a GCID entry for 20 August 2008 specifically stated that the claimant’s probation officer was of the view that the claimant was a high risk offender with child protection markers.

When one then factors in the policy change in June 2009 and the fact that a caseworker’s decision on a s.4 application is made within the context of the applicable policy at the time the decision on the application is made, it is simply impossible to say that the decision to impose the restrictions was unreasonable, given what is said in version 8 about the displacement of the standard process for offering Initial Accommodation in favour of a process which required information from an individual's CCD Case Owner (as opposed to the s.4 bail team) and the responsibility that that Case Owner is given for ensuring that appropriate bail accommodation is arranged, if it is offered.

Accordingly, in my judgment, the comparison that the claimant seeks to make to demonstrate that the decision in 2011 to impose restrictions on the type of accommodation he was to be offered was unreasonable is overly simplistic. It ignores the fact that caseworkers do not make their decisions in a vacuum; they have regard to policies that are applicable at the time, as was contended on the defendant’s behalf in the “summary grounds for contesting the claim” and the skeleton argument for the hearing on 30 July 2013.

The claimant's arguments in support of the contention that the defendant had acted unreasonably in imposing restrictions on the accommodation he was to be offered fall far short of showing any unreasonableness. On a proper analysis, it is my firm view that these arguments amount to no more than a disagreement.

Similarly, Ms. Naik relies on the fact that Address2 was similar to or the same as Address1 in terms of its proximity to schools and parks in order to demonstrate unreasonableness in the defendant’s decision to impose the restrictions. This simply ignores the evidence of Ms. Hopkins that attempts were made to obtain accommodation which did meet the three-mile criterion. When it became clear in September 2011 that it would not be possible to meet the three-mile criterion, the s.4 bail team varied the restriction, whilst still seeking to meet the defendant’s duty to protect the public. It is therefore misconceived to make a straight comparison between Address1 and Address2 and ignore the fact that the defendant was entitled to attempt to find accommodation which did meet the three-mile criterion to meet her duty to protect the public.

Turning now to Ms. Naik’s reply (hereafter referred to as “the Reply”) to Mr. Blundell’s Post-hearing note, I note in passing that this was the first time any attempt was made on the claimant’s behalf to actually engage with the potential relevance of the defendant’s policy/(ies) in handling s.4 applications notwithstanding that the defendant’s “summary grounds for contesting the claim” mentioned the change in policy in June 2009 and Mr. Blundell's skeleton argument dealt with version 8 of the policy.

Para 2 of the Reply states that the change in policy from June 2009 and the introduction of s.55 cannot justify the decision in January 2011 and April 2011 to impose the three-mile criterion on the accommodation to be offered to the claimant for the simple reason that the claimant was offered accommodation in March 2009 and remained in that accommodation until 18 May 2010. Ms. Naik argues that, if the policy had changed, there is no explanation why the claimant was able to remain in the same accommodation given its proximity to schools and parks for a further six months after the s.55 duty came into effect. I do not consider that this argument has any substance. It is based on an assumption that any process the defendant may have for monitoring the continued suitability of accommodation once it has been offered and occupied generally works in such a way that the lack of any action on the part of the defendant for a period of six months is a significant indicator of the view the defendant takes of the risk posed by the claimant to the public, as opposed to being an indicator of maladministration or inefficiency. There is no evidence on this one way or the other.

Para 4 of the Reply does not make sense. Ms. Naik says that none of the policies refer to the s.55 duty, which is incorrect because versions 7 and 8 did refer to the s.55 duty. The timing of the first notification of a restriction on the accommodation – i.e. 11 January 2011 (witness statement of Ms. Hopkins) – is consistent with version 7 coming into force on 30 September 2010. True it is that, given that s.55 came into force in November 2009, it is difficult to see why version 6, which came into force on 26 May 2010, made no mention of s.55. However, the claimant cannot build his case on the s.4 accommodation issue on ineptitude or incompetence. What matters here is that the timing of the imposition of the restrictions in his case ties in with the coming into force of the policy that first mentions the s.55 duty.

Para 6 of the Reply contends that there was nothing in the policies which demonstrates that in the cases of persons on the sex offenders’ register, accommodation would only be suitable if it is as far away as possible from schools and public parks or that a three-mile minimum radius was necessary. This submission is misconceived. It ignores the fact that versions 7 and 8 confer overall responsibility for ensuring appropriate bail accommodation was arranged on the individual’s CCD Case Owner. The GCID entry for 23 December 2010 and the evidence in the statement of Ms. Hopkins concerning the advice from the Case Owner on 11 January 2011 is consistent with the requirement in version 7 of the policy (that was in place at this time) in showing that the restriction was placed by the CCD Case Owner.

The GCID entry for 23 December 2010 indicates that the claimant was confirmed as being not suitable for Initial Accommodation on or around that date. This was the date on which a pro-forma regarding suitable accommodation was completed, according to the witness statement of Ms. Hopkins. It is clear from para 85 of Razai that the decision that the claimant was not suitable for Initial Accommodation was of such significance that fairness required the defendant to tell the claimant what she had in mind and why, to enable him to make any representations that he might have wished to make in response to that decision. He might have wished to challenge the legality of the decision to treat him as unsuitable for Initial Accommodation.

The defendant’s failure to inform the claimant of the decision that he was not suitable for Initial Accommodation was compounded by the fact that the claimant was not informed of the imposition of restrictions when they were first imposed (11 January 2011) when the Case Owner said that the claimant should not be placed near parks and schools. Fairness required the claimant to have been told that his risk was considered such that these restrictions were considered appropriate. Again, he might have wished to make representations or decide whether there were grounds to challenge the legality of the decision to impose the restrictions.

I therefore agree with Ms. Naik’s submission at para 5 of her Reply that the claimant was entitled to be told of the reasons for the imposition of the restrictions.

However, Ms. Naik has advanced before me representations on the claimant's behalf as to the reasons why the defendant’s decision to impose any restrictions was unreasonable. I have considered those submissions and rejected them as either amounting to no more than a disagreement on the merits of the treatment of the s.4 application or as being misconceived. Accordingly, I am satisfied that the claimant's submissions are not such that, had they been made at the relevant time to the defendant, they would necessarily have led to Initial Accommodation being offered or the defendant widening her criteria for suitable Dispersal Accommodation for reasons other than the reason she did (i.e. that suitable Dispersal Accommodation which matched the three-mile criterion was simply unavailable) or offering such accommodation sooner than she did.

For the above reasons, I have concluded that the defendant did not act unreasonably in imposing restrictions on the accommodation to be offered to the claimant in the event accommodation was offered to the claimant.

On the issue of delay, the claimant's case is that the delay that ensued as a result of the defendant’s unreasonable decision to impose restrictions on the accommodation he was offered is unlawful for that reason. Since I have concluded that the defendant did not act unreasonably in imposing those restrictions, his case on delay cannot succeed. He has not been granted permission to argue that his detention during any period of delay was unlawful in line with the guidance in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704.

Thus, whilst it is clear that there was some maladministration and muddle, in that, for example:

In all of the circumstances, I would refuse to consider making a declaration on a case based on pure delay (which has not been advanced) in showing illegality in the defendant’s handling of the claimant's s.4 application.

Since I have concluded that the defendant’s treatment of the claimant’s s.4 application was not unlawful, I refuse permission to argue that her treatment of his application prevented him from seeking a speedy resolution of his release from detention contrary to Article 5 (4) of the ECHR.

Ms. Naik did not seek to contend that the Article 5(4) claim, if permission was granted, could succeed independently of the claim in relation to the claimant's s.4 application. However, in case I am wrong about this, I will deal with the issue briefly.

I agree with Mr. Blundell that Article 5(4) has no application in order to obtain a declaration that a previous period of detention is unlawful. The European Commission of Human Rights held in X v. Sweden (1983) 32 DR 302, at 304:

“… The right guaranteed in Article 5(4) is hence only applicable to persons deprived of their liberty. However, Article 5 (4) has no application for the purpose of obtaining, after release, a declaration that a previous detention or arrest was unlawful.”

Furthermore, the focus of Article 5 is the procedure/proceedings by which the legality of detention can be established. A detained person is entitled to a judicial ruling on the lawfulness of his detention (para 109, Zamir v. United Kingdom (1983) 40 DR 42). The means by which the legality of detention is established is by way of judicial review proceedings or an application for a writ of habeas corpus. However, the claimant did not seek a writ of habeas corpus and, whilst he did bring judicial review proceedings, he did not seek expedition of his claim nor has he complained about the speed with which this judicial review claim has been dealt with, a complaint which could not possibly succeed.

Ms. Naik submitted that the defendant’s unlawful failure to handle the claimant’s s.4 application meant that he was prevented from presenting “a meaningful bail application” to seek this release. This is no different from saying that he lost a chance to obtain bail. This argument is misconceived for the following reasons.

First, whilst the defendant had a power to provide a bail address, she did not have a duty to do so.

Second, the caseworker decided to exercise discretion to widen the criteria for the Dispersal Accommodation. This was a matter of discretion. There is nothing to show that the discretion has been exercised unlawfully.

Third, I agree with Mr. Blundell that the judgment in R (Faulkner) v. Secretary of State for Justice [2013] UKSC 23, [2013] 2 WLR 1157, does not assist the claimant, as that case concerned the different issue of prisoners serving sentences of imprisonment and delay in Parole Board hearings, and not delays in the handling of the applications for s.4 bail addresses.

Fourth, even if the claimant had been given a bail address sooner, there is no assurance of bail being granted by an independent judge of the FtT, given that the judge exercises his or her own original jurisdiction on the merits. Furthermore, the claimant faced significant hurdles in the way of being granted bail, given that he did not have any sureties and given the defendant’s views of his risk of re-offending, risk of harm and risk of absconding. Ms. Naik sought to suggest that the letter from the defendant to the claimant dated 30 August 2011 (para 11 above) shows that the claimant's continued detention was directly linked to the lack of a bail address. I reject this submission. The inference Ms. Naik seeks to draw ignores the fact that a bail address is not the only consideration when bail is considered. If there is no bail address, a decision-maker may well consider it unnecessary to engage with any other considerations.

The application to add the remedy of aggravated or exemplary damages is refused because permission is refused on the Article 5 (4) issue.

The claim is dismissed.