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

These are two claims for judicial review brought by the claimant against the Secretary of State. CO/2730/2016 is a challenge to the claimant's detention between 24th August 2014 and 7th June 2017 pending his deportation. CO/4618/2016 is a challenge, or at least started life as a challenge, to the Secretary of State's decision to remove the claimant on 10th September 2016 and to the Secretary of State's refusal and, as it were, morphed into a challenge to the Secretary of State's refusal on 20th December 2016 to accept the claimant's further representations as a fresh claim and to revoke the Deportation Order which she had made in his case.

What I have to decide this morning is whether the Secretary of State should have permission to take any part at all in the unlawful detention claim. For reasons which will become clear, I do not need to go into this in too much detail, but Mr Anderson accepts that the Secretary of State has failed on more than one occasion to comply either with orders of the Court or with opportunities given by the Court to the Secretary of State to file summary grounds and detailed grounds in this case and, indeed, she did not file her skeleton argument until late yesterday. I only received it this morning. Detailed grounds were also filed late yesterday and I only received those this morning. In addition, the Secretary of State has filed this morning a witness statement. Mr Dixon, who appears for the claimant, received those documents, I understand, this morning.

It is clear, therefore, and as I say Mr Anderson accepts, that the Secretary of State requires the Court's permission in order to take part in the hearing of the unlawful detention claim. In his submissions, he relied on a number of points. He accepted first of all that there was no explanation for the Secretary of State's failure to comply with the various orders and directions made by the Court. All he was able to advance, and he did so vaguely, was that the Secretary of State was under a considerable pressure of work.

Nonetheless, and it seems to me this was his best point, he submitted that if the Secretary of State were not permitted to take part in the hearing of the unlawful detention claim that refusal permission would not have the effect of a judgment in default. In other words, the Court would still need to consider whether the whole period of the claimant's detention, which was nearly three years, or any part of that period, was unlawful. For that purpose, the Court would be greatly assisted by the participation in the hearing of the Secretary of State. I accept that submission.

He also made a point that if the Secretary of State were not permitted to take part in a hearing and if the court were deprived of the Secretary of State's assistance, a situation might arise in which the claimant received damages to which, on a proper investigation, it might prove that he were not entitled. In that situation, he would be obtaining a significant windfall at public expense in circumstances where either there was no legality at all or only legality for a part of the period for which the claimant was detained. He submitted that it was not in the public interest for that to happen. I accept that submission.

He also submitted that if the Secretary of State were allowed to take part in the claim, the claimant would not in the end result lose anything to which he was otherwise entitled, except insofar as that would lead to delay in the decision of the claim and, if it turned out that the claimant were entitled to any damages, to a delay in the claimant receiving those damages.

He submitted overall that it was not in the interests of justice for the Secretary of State to be deprived of the opportunity in taking part in the claim and that there were other mechanisms by which the Court could mark its disapproval of the Secretary of State's failures in this case. He referred me to a decision of Michael Fordham QC, sitting as a Deputy Judge of the High Court, in R (On the application of Ademiluyi) v Secretary of State for the Home Department [2017] EWHC (Admin) 935. The situation that confronted the Deputy Judge in that case was similar to the situation which confronts me, although it is right to say, as Mr Dixon pointed out, that the Secretary of State's failings in that case were significantly less than the Secretary of State failings in this case. Nonetheless, the Deputy Judge, having taken account of the arguments, said in para. 35:

Mr Dixon, in my judgment pragmatically and realistically, did not strenuously resist the Secretary of State's application for permission to take part in the unlawful detention claim. He submitted that his position was that the Secretary of State should not in these circumstances be allowed to take part in the claim, but he nonetheless accepted that the Court was likely to take the view that the public interest required the participation of the Secretary of State in the claim.

In my judgment, by analogy with the reasons given by the learned Deputy Judge in Ademiluyi, it is appropriate for the Secretary of State to be allowed to take part in the unlawful detention claim. What persuades me most is the fact that a refusal of permission to the Secretary of State to take part in the claim would not result in a judgment in default for the claimant. The Court would, nonetheless, have to be satisfied in relation to a period of detention of nearly three years that every day of it was unlawful in order for the claimant to succeed fully and would have to examine the whole period of detention in order to decide whether all of it, or any part of it, was unlawful. The Court in that situation would be greatly assisted by the participation not just of counsel for the claimant, who has to act in the interests of his client, but also counsel for the Secretary of State, who, it is clear from my very rushed and superficial reading of the detailed grounds, has done a great deal of work in analysing the voluminous documents.

The legal principles which apply to these claims are well established, but it can be difficult to apply those principles to a long period during which the underlying facts, in particular the facts in relation to prospects of removal, may change from month to month. It seems to me in that situation that the public interest, and the overriding objective, will be served by granting the Secretary of State permission to take part in the unlawful detention claim. I therefore give her that permission.

I cannot leave this part of the case without wishing to make clear my disapproval of the conduct of the Secretary of State in this case. I have had no explanation about why the Secretary of State failed on numerous occasions to serve either an acknowledgement of service with summary grounds of defence or detailed grounds of defence or any evidence and, indeed, the Secretary of State only served detailed grounds of defence late last night and only served a witness statement this morning. Those are egregious failures by the Secretary of State.

I direct that a transcript of this judgment be expedited, at the expense of the Secretary of State, and be sent to the Home Office for the Home Office to consider, because it is intolerable for a public body such as the Secretary of State, in a case such as this, which concerns the liberty of the detained immigrant, not to comply with the rules of Court and not to comply with orders of the Court. I also make clear that the Court hearing the unlawful detention claim will be entitled to take into account, in its decision on the final costs of that hearing, the Secretary of State's conduct so far in the unlawful detention claim.

My having given the Secretary of State permission to take part in the claim, further issues arise about the conduct of the unlawful detention claim. The first issue is whether that claim should be adjourned or whether it should be heard together with the para.353 challenge today. Mr Dixon submits, and this is a submission with which I have considerable sympathy, that he is simply not in a position to deal with the unlawful detention claim today, he having only received the Secretary of State's documents either late last night or this morning. Mr Anderson, wisely in my judgment, does not resist an application for an adjournment. In those circumstances, reluctant though I am to adjourn any part of this case, it seems to me that the only fair course of action is for me to adjourn the unlawful detention claim.

Having decided to do that, I need to consider whether or not that claim should remain in the Administrative Court or be transferred to the County Court. Mr Anderson is neutral on that point and Mr Dixon, although initially reluctant for the claim to be transferred to the County Court, I think in the end accepted that that was the right course. I will order that the case be transferred to the County Court.

There was a further issue which was canvassed by Mr Dixon in the course of his oral submissions about whether or not the para.353 claim should also be adjourned. There was some discussion between him and me in the course of his oral submissions about the matter. He asked me to rise for a few minutes in order to take instructions on it. Having taken instructions, he did not press his application for the para.353 claim to be adjourned. In that situation, I do not adjourn that claim.

The next issue which arises is how the costs thrown away by the adjournment should be dealt with. Mr Anderson does not resist an order that the Secretary of State should be required to pay the costs thrown away by an adjournment on an indemnity basis nor does he resist the suggestion by Mr Dixon that the order for costs should make clear that those costs are not to be set off against any future liability in costs that the claimant may incur. I also make that order.

I asked the parties whether I was in a position summarily to assess the costs thrown away by an adjournment and I was told that I am not. Mr Dixon indicated that his instructing solicitors would send their bill of costs to the Secretary of State within two weeks. The parties will endeavour to agree those costs. If they cannot be agreed, then they will have to be assessed.

There are three further issues that arise in relation to the unlawful detention claim. The first is the bundle of documents which should be used in the County Court. Mr Dixon suggested that new bundles would have to be prepared for any hearing in the County Court. I disagree with that. It seems to me that the existing bundles should be used and the parties should not go to the expense of preparing new bundles.

Mr Anderson indicated that there was some further disclosure which his solicitor was in a position to provide within seven days. This is the second issue. I will order the Secretary of State to provide that further disclosure within seven days. Any disclosed documents and any further documents that need to go into the bundle should be inserted into it.

The final issue which arises in relation to the transfer to the County Court is that a case management conference should be listed in the County Court as soon as possible. Are there any further points that arise in relation to any of those issues?

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