Gordon, R (On the Application Of) v National Probation Service & Anor

The claimant is a man now aged 24. He has, in fact, lived in the United Kingdom since he was aged about eight. He has no established right to be here. In 2015, he was convicted of a criminal offence and sentenced to two years and one month imprisonment. He has served that criminal sentence and was eligible for release at about the beginning of 2017. However, since then, the Secretary of State for the Home Department has continued to detain him in immigration detention.

The claimant made an application for bail and on 14 June 2017 an immigration judge in the tribunal system made an order for bail upon certain conditions. These included that:

“The applicant shall not be subject to release until his address has been verified by the Probation Service.”

Between then and now, the claimant has remained detained. There is, indeed, some ambiguity in the use of the word “verified” in that condition attached by the immigration judge. But at all events, the position seems to have been that between then and this week the National Probation Service have not felt able to give their approval to the claimant being released on the basis of the residential address at which he was proposing to live. So it was that about ten days ago, on 25 September 2017, the claimant issued in the Administrative Court of the High Court his present claim for judicial review.

It is clear from the claim form and the grounds of the application that the primary, if not sole focus of the present claim, was and is to obtain his release. He alleged in his Grounds of Application that the continuing decision of the Secretary of State to detain him at all is unlawful, and alleged that the National Probation Service were also acting unlawfully. Because that claim was only issued as recently as 25 September 2017, neither the National Probation Service, who are the first defendant, nor the Secretary of State for the Home Department, who is the second defendant, have yet filed and served acknowledgments of service and any summary grounds of defence. So, the claim remains at a very embryo stage and neither of the defendants have yet pleaded their cases in defence of it.

Meantime, the claimant had included within his claim an application for immediate consideration of his release. By an order dated 25 September, the same date that the claim was issued, Lang J indicated that she was not prepared to order bail on written application but that the case must be listed for oral hearing here today, when bail would be considered.

Events have moved on since that order was made last week. On 2 October 2017, the Government Legal Department, acting on behalf of the National Probation Service, sent an email to the effect that the National Probation Service did now approve that the claimant could be released to the specified address.

There have been further exchanges between the solicitors for the claimant and the Government Legal Department, acting on behalf, separately, of each defendant since then, and there was a final letter sent from the Government Legal Department on behalf of the National Probation Service to the court late yesterday, which had not, in fact, reached me before I came into court this morning. The upshot is that the Secretary of State for the Home Department has now unequivocally said this morning that the claimant will be released from detention later today, as soon as certain release formalities have been completed.

That does have the effect that the claimant has now achieved the primary purpose of the present claim, which was to secure his release. His solicitor, Mr Tiki Emezie, has very strongly urged that I should, nevertheless, now permit him to amend the present claim within the present proceedings to include claims for damages, including both aggravated and exemplary damages, against each defendant. He says that a claim for damages is implicit within various parts of his pleaded Grounds of Claim and that an award of damages could fall within the phrase “any other relief that the honourable court deems appropriate” as used in section 7 of the claim form.

I wish to make crystal clear that I neither express nor imply nor, indeed, have any view whatsoever today as to the strength or otherwise of any proposed claim for damages against either of these defendants. But in my view, it is not appropriate now to permit the claimant to amend his present claim to include such a claim. I accept the submission of Mr Vinesh Mandalia, who appears today on behalf of the Secretary of State, that any claim for damages would require considerable amendment of, and redrafting of, the present Grounds of Claim. They do not in any way identify or spell out the period or periods in relation to which damages are, or might be, claimed against each respective defendant. They do not trail in any way at all the possibility of a claim for exemplary or aggravated damages.

So, I refuse the oral application made today for permission to amend the present claim to include an express claim for damages. However, as Mr Mandalia himself accepts, that is all on the basis that if the claimant does wish to claim damages against either or both defendants for alleged unlawful detention, such claims remain at large and have not been determined by these proceedings and he may issue such claim or claims as he may wish and be advised in such court as he may be advised.

That decision has the effect now that the present claim in judicial review has achieved all and everything that it could achieve, namely the immediate release from detention of the claimant. In those circumstances, there are two possibilities. One is to grant permission to the claimant to withdraw the present claim, the other is formally to dismiss it; in each case on the ground that it has now become academic. Mr Emezie asked for permission to withdraw the claim and I grant it.

That leaves the residual but most difficult question for me today, namely what order, if any, to make as to costs. On behalf of the claimant, Mr Emezie asks that his costs should be paid jointly and severally by each defendant.

My starting point is that it does seem to me that this claim has been successful in its objectives. The claimant had been detained for about nine months since his release from his criminal sentence. He seemed to be making little progress towards obtaining his release, even after the decision of the immigration judge in June. He issued the present proceedings only about ten days ago on 25 September, and I have no doubt that it is under the momentum of these proceedings and this claim that he has now achieved his release today. So, his claim has been successful and in my view he is entitled in principle to recover his costs from one or other or both of the defendants.

On behalf of the Secretary of State for the Home Department, Mr Mandalia, who is present, submits that the claimant obtained a decision as to bail in June and it is only because of the acts or omissions or decisions of the Probation Office since then that he has not been released. That may be so, but undeniably it is only as a result of the decision of the Secretary of State that he remains detained at all. Clearly, it has been open to the Secretary of State to release the claimant at any time, irrespective of any decision of the National Probation Service with regard to address.

In these difficult circumstances in which neither defendant has yet even pleaded to the claim, and in which I cannot, of course, engage in any more profound consideration of the decision making by either defendant or the overall legal framework, it seems to me that the only fair outcome is to make an order that each defendant must pay one-half of the costs of the claimant of and incidental to this claim. In reality, it seems likely that those costs fall on the same overall state budget, namely that of the Home Office.

So, for those reasons, I shall make an order that each defendant must pay one-half of the costs of the claimant of and incidental of this claim, to be the subject of detailed assessment if not agreed.