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

MRS JUSTICE ANDREWS: This is an application for judicial review of a decision made by the Secretary of State to detain the claimant in immigration detention from 7 August 2014 onwards. The decision to detain the claimant was made against the background that on 1 August 2014, just a week earlier, he had been released on bail from immigration detention by Immigration Judge Peart, subject to certain conditions. The first was a condition that he should report to the authorities, and the first date for reporting was 8 August. That is the day after the decision was made. The second condition was that he should reside and sleep overnight at a house that belonged to his aunt. His aunt stood as surety to his bail, and therefore had obligations to ensure that he adhered to those conditions.

It is fair to say that the claimant does not have the best track record. He is a citizen of Jamaica, born on 2 April 1979, who served with the British army from 2002 to 2010. On 8 May 2013, at a time when he had already overstayed his leave to be in the jurisdiction, he was convicted of a serious assault on his then partner, and sentenced to 15 months' imprisonment. That sentence brought into play the automatic deportation provisions of section 32 of the UK Borders Act 2007. He was placed in immigration detention for the first time under section 36(1) of the 2007 Act on 26 August 2013. A deportation order was made on 9 September 2013. His appeal against that order is still pending.

There is no evidence before this court that the Hardial Singh principles have been breached (in the sense that the initial decision to detain him has not been taken for legitimate reasons of securing his removal). There is nothing to suggest that the Secretary of State does not expect his removal to take place within a reasonable time, or that against the background of his offending history the decision was a disproportionate one. The sole obstacle to his removal was his pending appeal. His detention has been periodically reviewed.

The decision by Immigration Judge Peart to release the claimant on bail was made in the teeth of fierce opposition by the Secretary of State, who pointed to his offender management report, which assessed that he posed a medium risk of reoffending and of causing serious harm. There was a suggestion that he might abscond, and that the address given for him to reside at was not a suitable address: there was said to be insufficient evidence that the aunt lived there or that she would be able to exercise adequate supervision over him. However the main objection raised by the Secretary of State was that he was likely to reoffend, and that he posed a particular risk to his former partner.

Notwithstanding that, and having taken all those matters into account, Immigration Judge Peart decided to grant him bail and, on the face of it rather surprisingly, did not attach any conditions in relation to non-contact with the former partner. It may be that the decision not to attach such conditions was at least partly driven by the fact that the couple had a child who was residing with the ex-partner, or it may be that the judge took at face value the defendant's protestations that he had no reason whatsoever to seek to harm her in all the circumstances, given that they were no longer together and he was living elsewhere.

In the light of the fact that the claimant was released on bail, any power to re-detain has to be exercised reasonably, and it has to be justified. The Secretary of State cannot simply use that power to try to get round a decision to grant bail.

On behalf of the claimant, Mr Jacobs submitted that in effect that what was the Secretary of State was trying to do and there was nothing new to justify her officials’ fresh decision to detain the claimant so soon after his release on bail. He submitted that this was a clear case of an abuse of the power merely in order to take issue with a decision of an Immigration Judge to grant bail that the Secretary of State did not like.

The fact that the Secretary of State does have the power to re-detain somebody, notwithstanding that they have been granted bail, is common ground. That power exists under paragraph 33 of Schedule 2 of the Immigration Act 1971. This provides as follows:

On behalf of the Secretary of State, Mr McGuire QC submitted that this was a paradigm case for the exercise of the power to re-detain under 33(1)(a). There were, he submitted, reasonable grounds for belief that the claimant was likely to break the condition of his bail that he would appear at the time and place required. Alternatively, there were reasonable grounds to believe that he was not living at the aunt’s address or was going to move out, or that there was fresh evidence of the likelihood of commission of further offences.

It is fair to say that the Secretary of State's case has somewhat havered between those propositions/justifications as time has gone on. Admittedly, the decision letter stated as a ground for detaining the claimant not only the fear that he would commit further offences in relation to his ex-partner but also, and it appears primarily, the fear that he would not appear in accordance with his reporting restriction on 8 August as he was obliged to do.

Mr McGuire very rightly accepted that there would have to be sufficient fresh material to enable the decision to re-detain the claimant to be taken, the grounds of challenge being that the decision was Wednesbury unreasonable. There had to be enough evidence on which a reasonable person in the position of the Secretary of State could form the view that the conditions in paragraph 33(1)(a) were satisfied. I therefore need to examine what there was in terms of evidence before the Secretary of State to justify the detention of the claimant on the date that it occurred.

What is interesting about this case is that the decision to detain him appears to have been taken on 7 August, but the actual detention implementing it did not take place until the 8th August. That may be a matter of some significance.

The evidence, inter alia from police officers, is that not long after he was released on bail, the claimant went round to his former girlfriend's home at around 5.00 am. A neighbour phoned the police to complain that he had been banging loudly on the neighbour's door 15 or so times and creating a disturbance. The ex-girlfriend also complained to the police that he was harassing her. This alleged behaviour has to be considered in the context of evidence that the claimant had been sending her abusive and harassing text messages whilst he was still in immigration detention. The evidence relating to those messages had been before Immigration Judge Peart. So, on the face of it, the claimant was doing exactly what the Secretary of State had told the Immigration Judge he was likely to do if he was released on bail, and he had said that he would not do.

Subsequently, the ex-girlfriend retracted her complaint of harassment. She told the police that she had simply been shocked that the claimant was out on release, and that she said what she did because she wanted him to be re-detained. As was observed by the Deputy High Court Judge who granted permission to bring judicial review, there are always difficulties in cases of what can broadly be described as domestic violence, because people in the position of the ex-girlfriend sometimes make valid complaints and then retract them, but they also sometimes make false complaints and then have second thoughts and retract them. This court is in no position to tell which of these scenarios applied in the present case, but the explanation given for the retraction cannot necessarily be taken at face value. Nor can it be discounted, as it may be true.

There is, however, the independent evidence of the neighbour which was recorded by the police, and there is the timing of the appearance of the claimant at the property occupied by his former partner. The claimant now says that he was nowhere near the place at that time, and that they are either both lying, or else it was somebody else who was causing the disturbance that the neighbour reported.

When the police went round to the bail address to ask the claimant some questions about this alleged incident at 8.30 am, they banged heavily on the door, and announced their presence as police officers but nobody responded to their attempts to gain entry. That is somewhat strange, as one would expect the householder (the claimant’s aunt) to be at least awake, if not up, by 8.30am. I do not know where the aunt was or what she was doing at the time. If she was not in the house, making sure that the claimant was sleeping there, then she was not taking her duties as a surety very seriously. More to the point, one wonders what the claimant was doing. He says he was asleep upstairs and did not hear the officers knocking on the door.

The fact that no-one answered the door might have been indicative that the claimant was in breach of his bail conditions and was not actually present in the property at the time, which was one of the grounds that was at one point relied on, were it not for the fact that one police officer testified that when he looked through the letterbox he saw the house keys in prominent view in the hallway, indicating that there was somebody present. Given that somebody was present in the house, it was either the aunt or it was the claimant, or it was both of them. Whatever criticism might be levelled at the occupant(s) for failing to open the door to the police, one could not reasonably deduce from that evidence that the claimant was not there, or was not sleeping there. If anything, it tended to suggest that he was there, but he just did not want to speak to the police. The inferences to be drawn from that reluctance to engage with them are something to which I will return.

In any event, the police officers then made contact with the claimant by sending him a message on his mobile phone, and he later phoned them up. They then told him that they wanted to talk to him about the alleged incident with the ex-girlfriend, and he made an arrangement to go and see the police voluntarily the following day. That, of course, is to his credit. What is not to his credit is the fact that he did not show up. He has never given an explanation as to why he did not attend that appointment, even though he has served a witness statement dealing with the alleged incident and explaining why he did not admit the police when they called at the house. The reasonable inference to be drawn from his failure to show up at the appointment is that he did not want to have a discussion with the police about these allegations that had been made by his former partner. If he had been nowhere near her property, he had nothing to fear from saying so.

When he failed to keep the appointment the police, quite understandably, went round to the aunt's house again to speak to the claimant. They knocked on the door at 10.30 am this time. Again they did not obtain admission, but the officer who looked through the letterbox on this occasion saw a large holdall in the hallway. There may be a totally innocent explanation for that. The one proffered by the claimant is that his girlfriend had sent round his belongings by taxi the previous day. He says that it is possible that they were the contents of the holdall. However, in the light of all the other information that the police had at that time, and his failure to engage with the police at that stage, it would not unreasonable to suppose that the claimant might be unlikely to turn up for his scheduled appointment with the authorities on 8 August. Therefore, on the face of it, on 7 August, armed with all of that information, there would be nothing wrong with taking the decision that it was necessary to detain him, because there were reasonable grounds for believing that he was likely not to appear at the time and place required.

Unfortunately for the Secretary of State, having taken that decision, when the time to report arose, lo and behold, the claimant turned up and kept his appointment at the time and place specified. Faced with that change in the expected scenario, in my judgment it was wholly unreasonable to maintain a decision to detain him on the basis that he was unlikely to report, because contrary to expectations on the 7th he did in fact report.

Although Mr McGuire sought to persuade me that this was simply a countervailing factor, I cannot see how any reasonable person in the defendant’s position could possibly have continued to rely on inferences drawn from the claimant’s earlier behaviour as a ground for thinking that he would not report in the future, if he actually reported on the first occasion that he was required to do so. That is precisely when one would expect him to abscond if he was going to, particularly if he apparently had a holdall packed and ready to go standing in the hallway the night before. The inferences that he was going to abscond which could have been legitimately drawn from his failure to answer the door, his failure without excuse to keep his appointment with the police, and the holdall in the hallway were no longer open to the Secretary of State or the police, given that he had in fact complied with his reporting conditions.

So the justification given for his detention on the ground that there were reasonable grounds for believing he would not comply with the reporting conditions was insufficient, in my judgment, given the change of scenario on 8 August, and if that were the only basis on which he had been detained on 8 August, the detention would plainly have been unlawful.

As for the second justification that was put forward, which was that the police had reasonable grounds for believing that he was not residing at his aunt’s address, again I consider that to be too thin bearing in mind what I have said about the evidence that suggested that he was probably in the aunt’s house at least on the first occasion when the police knocked on the door. The fact that he may have been out when they called round the next day at 10.30am is neutral, because that is not inconsistent with his having slept there or his living there. The fact that there was a holdall in the hallway which appeared to belong to the claimant again suggests that he was residing there. There is a fundamental inconsistency between the assertion that there were reasonable grounds for belief that the claimant was going to abscond (because of his failure to engage with the police and the fact that he was not answering the door although he appeared to be at the aunt’s house) and the assertion that there were reasonable grounds for believing (on the basis of the same material) that he was not residing there. So that is not a good ground for detaining him either.

That leaves the risk of re-offending. Although there has been a certain amount of vacillation in the Secretary of State's position, it seems clear that when the claimant made further applications for bail following the implementation of the decision under challenge to re-detain him, the Secretary of State relied quite heavily (and successfully) on the ground that there was sufficient reason to suspect that he would commit further offences. That would not be a breach of his express bail conditions, but nevertheless it would be a justification for detaining him if the grounds for suspicion were based on fresh evidence over and above that which was before Immigration Judge Peart. Essentially, there would be something new on which the Secretary of State could rely.

That is really what this application for judicial review ultimately turns upon, in my judgment. Criticism has been levied by Mr Jacobs on the basis of what happened with the Immigration Judges who determined the more recent applications for bail. The first Immigration Judge, Immigration Judge Tiffen, was not told that the former partner had retracted her complaint. It appears that this was an entirely innocent omission because it seems that the police officer involved, Officer Yeung, had been intending to turn up and give oral evidence at the bail hearing. That being so, it may well have been thought unnecessary to serve the witness statement that he had prepared a little earlier which fully detailed the fact that the lady in question had retracted her complaint. However, in the event he neither turned up nor was his statement produced to the Immigration Judge. Therefore Judge Tiffen refused bail in ignorance of that fact.

When the matter came back before the second Immigration Judge on 25 September, she was told that the claimant’s ex-partner had retracted her complaint, because by that stage counsel then acting for the claimant (not Mr Jacobs) had been given a copy of Officer Yeung's statement - albeit only on the day of the hearing. Although the judge does not specifically mention the retraction as such in her judgment maintaining the decision to detain, she does refer to the fact that the complaint had not been pursued either by the lady concerned or by the next door neighbour. She nevertheless came to the conclusion that there was sufficient evidence to show a real risk of the commission of further offences against the ex-partner, in part, it appears, in reliance upon the view that had been taken by Immigration Judge Tiffen.

The problem with that, says Mr Jacobs, is that the second Immigration Judge was not told that Judge Tiffen did not know that the partner had retracted her complaint, and that may have influenced his view. Assuming that to be true, I am not sure to what extent that would have had any material bearing on the question whether there was sufficient evidence of risk. The second judge was exercising her own judgment on the question of bail, not merely adopting the views of Judge Tiffen, although she agreed with him.

The fact remains that there was some evidence to suggest that a risk of reoffending existed, quite independently of whether there was any claim for harassment or the former partner’s motives for bringing it (or indeed for retracting it). There is the evidence of the neighbour, although not in the form of a witness statement from the neighbour. The police said that there was an immediate complaint by the neighbour who phoned them up about the doorbell being rung in the early hours of the morning. There is the timing of the incident. There would really be no legitimate basis for the claimant, on the face of it, to turn up at 5.00 am at his girlfriend's house and then try to rouse a neighbour. Then, in my judgment, there is the fact that despite at one point offering to meet with the police, the claimant appeared to be extraordinarily unwilling to engage with them about the complaint that was originally made in that regard. It would have been the easiest thing in the world for him to say: "I did not go round there" or "You are mistaken", and if he had voluntarily made an appointment but had good reason not to keep it, one would have expected him to tell the police (and this court) why it was that he did not attend. But no explanation has ever been proffered for that.

What inference could reasonably be drawn from all of that? He is unwilling to speak to the police about the incident. There is prima facie evidence that the incident occurred. The claimant now says it was not him ringing the doorbell at 5am. He has no legitimate reason for contacting his ex-partner at that time of day, and although the conditions of his bail did not prohibit him from contacting her, it is an extra factor to weigh in the round when looked at against the context of the overall background of this case, which is one of violent offending against the lady concerned.

When one therefore looks at the totality of the information before the police and the decision maker, the question for this court is was it Wednesbury unreasonable for the Secretary of State to take the view that there were reasonable grounds for believing that the claimant was likely to commit further offences? In my judgment, there were reasonable grounds for believing that he was likely to reoffend. Those grounds were different from those which were before Immigration Judge Peart – because they were based on the claimant’s behaviour after he was released on bail. So this is not just a case of re-detaining him on the basis of the earlier material. It is the earlier material coupled with the incident which allegedly occurred so soon after his release and the failure to engage with the police in relation to that incident, taken in the round, that provides the justification for his detention.

For those reasons, although there was a great deal of force in many of the criticisms put forward very succinctly and, if I may say so, eloquently by Mr Jacobs, I will refuse this application for judicial review.

MR MCGUIRE: I am grateful. I will just take instructions.

MRS JUSTICE ANDREWS: You just squeaked by, Mr McGuire, but it was narrow. Your client may have to aspire to producing reasons with a little more clarity and perhaps a little bit more cogency and consistency next time.

MR MCGUIRE: I am grateful. I am instructed that it is the usual practice of the Treasury Solicitor to seek costs. You have heard the evidence. I say no more.

MRS JUSTICE ANDREWS: What do you have to say about that, Mr Jacobs?

MR JACOBS: My Lady, with regards to costs, I would submit that the Secretary of State ought not to recover all of her costs in this case. I was going to ask for an order that the claimant pay 50 per cent of the Secretary of State's costs.

MRS JUSTICE ANDREWS: Are you legally aided?

MR JACOBS: I am.

MR MCGUIRE: I am grateful. We would happily accept 50 per cent of the costs on the usual terms.

MRS JUSTICE ANDREWS: I think that is fair. I think actually Mr Jacobs is being quite generous to you, but you did win albeit by a squeak. So I shall order that the Secretary of State's costs be paid but subject to the usual legal aid order. You, Mr Jacobs, will also need an order for the legal aid assessment of your costs in the usual terms.