Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
NIGEL POOLE QC
(sitting as a Deputy High Court Judge)
Between :
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The Queen on the application of TADEUSZ WANDZEL |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
James Dixon (instructed by Bhatia Best Solicitors) for the Claimant
Neil Sheldon (instructed by the Government Legal Department) for the Defendant
Hearing dates: 22 May 2018
Judgment Approved
Nigel Poole QC:
This claim for judicial review concerns the deportation of a Polish national. He claims that it was unlawful to detain him pending his removal and unlawful to certify that it would not breach his Convention rights to deport him before the commencement or final determination of an appeal against deportation. The second issue involves consideration of how the Supreme Court’s decision in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380 (“Kiarie and Byndloss”) affects the position of a European Economic Area national facing deportation.
The Claimant is a Polish national, born in 1963, who came to the United Kingdom in or around 2007 and has remained. During the years since his arrival he has been guilty of persistent criminal offending, having been convicted of 20 offences including assaulting a police officer and battery, but has never served a prison sentence of more than one day. On 16 October 2017 he was referred to the immigration enforcement authorities after being arrested by the police. He was detained, interviewed, and given reasons for his detention. On the same day he was served with a notice of liability to deportation pursuant to the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) which included a “One-Stop Notice” under s.120 of the Nationality, Immigration and Asylum Act 2002 directing him to tell the Defendant of any reason he had for wishing to remain in the UK, and any grounds on which he should be permitted to remain or on which he should not be removed.
The Claimant did not respond to the notice and on 14 November 2017 he was served with a decision to deport him together with certification under regulation 33 of the 2016 Regulations. Regulation 33 gives the Defendant a discretion to certify that, despite the appeals process not having been begun or not having been finally determined, the Claimant’s removal would not be unlawful under section 6 of the Human Rights Act 1998. The effect of certification is that a person may be removed from the UK whilst their appeal is pending.
The Claimant exercised his right to appeal to the First-tier Tribunal (“FTT”). A notice of deportation arrangements was issued on 23 November 2017 for deportation on 28 November but that deportation did not go ahead and arrangements were subsequently scheduled for 22 January 2018. The Claimant filed his claim for judicial review on 19 January 2018. He later amended his grounds on 2 February 2018.
To date the Court has made orders on three occasions:
On 19 January 2018 Mrs Justice Lambert allowed urgent interim relief by way of an order prohibiting the Defendant from taking steps to remove the Claimant pending permission or further order.
On 8 February 2018 Mrs Justice Cockerill refused the application for further interim relief, namely an order for release of the Claimant from detention.
On 15 February 2018, at a renewed oral hearing, Mr Justice Lane ordered that the Claimant be released from detention by 11.59 pm on 16 February, and gave permission for judicial review with directions leading to a one day hearing of the judicial review.
The appeal in the FTT is listed for a substantive hearing on 18 June 2018 but the Claimant alerts the Court to the possibility of an adjournment on his application because legal aid has not yet been secured.
The Claimant’s original grounds for judicial review were:
The reg.33 certificate requiring the Claimant to exercise his appeal from outside the UK, subject to the possibility of temporary admission, was unlawful in the light of Kiarie and Byndloss.
On the facts of this case, pursuing removal was irrational and unfair. It would not be practicable, given the time constraints, for the Claimant to return from Poland to participate in his appeal, giving rise to a breach of the procedural protections of Article 8 and of the Claimant’s right of access to the court.
The Claimant’s ongoing detention was unlawful. The third Hardial Singh principle had been offended because, following Kiarie and Byndloss, the Defendant could not reasonably have expected to remove the Claimant within a reasonable period. The Claimant was released from detention by the order of 15 February 2018. This ground was amplified in oral submissions as discussed later in this judgment.
The Facts
I have already given a brief outline of the facts. The Claimant’s offending history is not disputed and is set out in the Defendant’s Detailed Grounds of Defence at paragraph 9, and again in a detention review of 14 November 2017. There is an additional offence in the review not mentioned in those Grounds. In total there are 16 convictions for 20 offences and 2 police cautions, dating from 11 August 2008 to 7 September 2017. Most recently he has been convicted of battery on 17 August 2016 when he was given a community order. He was then convicted in January, August and September 2017 of failures to comply with the requirements of the community order. He has a history of breaching conditional discharges and community orders and some of his offences have been committed whilst on bail. He has received one day prison sentences on two occasions: in September 2010 and January 2012. Violent offences include battery and assaulting a police constable, and he has a conviction for using threatening behaviour. After a period of three years from March 2012 when he had not been convicted of any offences he then accumulated ten convictions from March 2015 to September 2017.
The detention review of 14 November 2017 also records that the Claimant’s offending history was associated with his use of alcohol and that he was considered to be an alcoholic. He was of no fixed abode. His risk of absconding was assessed as being high because he “has no fixed abode and has been convicted of failing to adhere to restrictions imposed on him by the courts several times”. The Claimant was interviewed on detention and indicated that he had very few family ties in the UK. It was concluded that his “lack of compliance with court orders, lack of a family life and his repeat offending indicate that in all likelihood on release he will go to ground and move to another area should he be released on bail.”
His risk of re-offending was also assessed as being high, as was the risk of harm to the public given his convictions which were said to have included assault, threatening behaviour, battery and assaulting a constable (in fact, the Claimant does not appear to have been convicted of a separate offence of assault).
In his witness statement of 14 May 2018, on which I gave permission to him to rely at the beginning of the hearing, the Claimant says that in the past few years he has worked to support his partner Ms Danuta Kielar who has chronic heart failure and is unable to work. This does not sit easily with a letter dated 30 November 2017, apparently from Danuta Kielar, in which she does not refer to the Claimant as her partner but someone she has known “for many years and he is my only friend.” The Claimant also says that he has strong family ties in the UK, his daughter living here as well as his partner’s two sons. This is not the information given to the Defendant on interview, as stated above. He has not, even now, provided any further details about these family ties within the UK. He says that he is a “changed man”, but his most recent conviction, breach of a community order, was in September 2017, only shortly before his detention. The Claimant says that when he lived in Poland he did not have a steady job and did not get paid much. However, he has not provided any evidence to show that he has fared any better in the UK. The evidence before me suggests that he lived in Poland for the first 43 years of his life. I have no reason therefore to suppose that he would struggle to manage there on return, that he would have no resources at all, that he would have no-one to assist him or have nowhere to stay.
In any event this further evidence from the Claimant has been produced after the reg. 33 certification decision. The Claimant did not provide the Secretary of State with any such evidence at the time when the decision was made. Importantly, he had had an opportunity to do so. On 16 October 2017 he had been served with a Notice that he may become liable to deportation. It set out why the Secretary of State considered he may be liable to deportation and directed him to tell her why he should not be deported, stating that he would not have another opportunity to do so and so must ensure that he provided any relevant information at that time. Helpfully, Part 3 of the Notice sets out examples of the reasons which he might wish to put forward. It also includes the following section on the possibility of deportation before appeal:
“If it is decided to deport you, there are certain circumstances in which the Home Office can certify the claim so that you are deported before your appeal is heard. The Home Office will normally certify a decision unless removing you before your appeal is heard would cause serious irreversible harm to you or your family or otherwise breach your or their human rights, during the period in which you will be out of the country pursuing your appeal. If there are any reasons why you would not be able to continue an appeal from outside the United Kingdom in the event that your claim is refused you should tell us now.”
The Claimant did not provide any reasons prior to the decisions being made to deport him and to certify under reg.33.
Turning to the history since his detention, the following matters are of relevance:
The Claimant’s detention was reviewed on 17 and 30 October 2017 at which time it was noted that his removal could be effected within a reasonable timeframe.
On 26 October 2017 the Claimant applied for bail which was refused at a hearing on 3 November 2017.
On 14 November 2017 a deportation notice was signed requiring his removal to Poland and his continuing detention was authorised on the basis that his removal could be effected within a reasonable time. The deadline for the Claimant appealing his deportation (to the FTT) was noted to be 30 November 2017. He did exercise his right to appeal. The date when he brought his appeal is not clear from the papers but I assume that it was prior to 30 November.
There was a detention review on 14 November 2017. In it there is a detailed history of his offending and an assessment of risk, as discussed below.
Removal was planned for 28 November 2017 but could not go ahead on that date. I was provided with an additional document during the hearing which showed that the removal directions had been cancelled “as instructed by case owner as insufficient notice was allowed after the service of the stage 2 letter … [Removal Directions] to be reset for after 16/12 with escorts as subject does not want to go as per note from IRC on 24/11. New escorted flight requested now.”
On 29 November 2017 the Claimant applied for bail which was refused at a hearing before the FTT on 6 December 2017.
Removal directions were in fact reset for an escorted flight to remove the Claimant to Poland on 22 January 2018. This was noted at the review on 15 December 2017. The authorising officer noted that given there was no bar to removal and directions were in place for 22 January, removal is “therefore considered imminent”.
On 9 January 2018 the FTT notified the Secretary of State that the appeal had been listed for 26 January 2018. A further detention review was carried out that day and again removal was noted to be imminent. That is the last documented detention review in the papers.
Mrs Justice Lambert made her interim order prohibiting removal pending permission or further order on 19 January 2018.
On 26 January 2018 the FTT appeal was adjourned. The Claimant had not secured legal aid for representation and the Defendant had not served bundles for the hearing by 19 January as it had been ordered to do.
On 6 February 2018 the Claimant made urgent application for an order directing his release from detention by way of interim relief. On 7 February 2018 the Defendant applied for the judicial review claim to be expedited. Both applications were refused by Mrs Justice Cockerill on 8 February 2018 but the Claimant’s application was granted on 15 February 2018 by Mr Justice Lane as already noted and he was released.
The Legal Framework
By reg.23(6) of the 2016 Regulations the Secretary of State has the power to remove an EEA national on grounds, amongst others, of public security. Reg.27 provides that any such decision must comply with the principle of proportionality and be based exclusively on the personal conduct of the person concerned. Reg.32 gives the power to detain the person subject to removal.
Reg.33 provides:
“Human rights considerations and interim orders to suspend removal
33.(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person (“P”) to whom regulation 32(3) applies, in circumstances where—
(a) P has not appealed against the EEA decision to which regulation 32(3) applies, but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or
(b) P has so appealed but the appeal has not been finally determined.
(2) The Secretary of State may only give directions for P’s removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P’s appeal, would not be unlawful under section 6 of the Human Rights Act 1998( 1 ) (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”
Reg.36 provides a right to appeal to the FTT against a decision to remove an EEA national under reg.23(6). Where the person is outside the UK they may make application for temporary admission to enable them to appear at the appeal in person. Reg.41 provides:
“Temporary admission to submit case in person
41.(1) This regulation applies where—
(a) a person (“P”) is subject to a decision to remove made under regulation 23(6)(b);
(b) P has appealed against the decision referred to in sub-paragraph (a);
(c) a date for P’s appeal has been set by the First-tier Tribunal or Upper Tribunal;
(d) P wants to make submissions before the First-tier Tribunal or Upper Tribunal in person; and
(e) P is outside the United Kingdom.
(2) P may apply to the Secretary of State for permission to be temporarily admitted (within the meaning of paragraphs 21 to 24 of Schedule 2 to the 1971 Act, as applied by this regulation) to the United Kingdom in order to make submissions in person.
(3) The Secretary of State must grant P permission, except when P’s appearance may cause serious troubles to public policy or public security.”
The Issues
The issues identified by Counsel are:
Is the claim for judicial review now academic? If not,
Was the decision to certify under reg.33 unlawful?
Has the Claimant’s detention been unlawful at any time?
Is the Judicial Review Claim Academic?
The Claimant is not now detained and there is an interim order preventing his removal until permission or further order. The parties have understood that only refusal of permission or further order would have discharged the order. They agree that Lambert J’s order now continues to prohibit removal until further order.
The Defendant contended in written grounds and submissions that judicial review of the reg.33 certification is now academic, that there are no exceptional reasons for the Court to determine the claim that certification was unlawful, and that following established principles as articulated by Silber J in R(Zooline International Ltd) v Sec of State for Environment, Feed and Rural Affairs [2007] EWHC 2995 (Admin) at [36], the Court should not determine academic issues. The purpose of the challenge to certification was to prevent removal pending the determination of the appeal and, says the Defendant, that purpose has now been achieved.
The Claimant does not accept that the lawfulness of the reg.33 certification is academic. The removal has been prevented up to this point but if the Court were not to make a determination on the lawfulness of the certification, there would be nothing to prevent the Defendant from seeking to lift the interim order and to remove him before the FTT appeal is heard or concluded. In contrast, if the Court were to determine that the certification was unlawful, he would be protected from removal pending appeal.
It is evident, and conceded by Mr Dixon for the Claimant, that the second ground of challenge to the reg.33 certification was based on the particular circumstances affecting the Claimant in January 2018, and that it has fallen away due to the interim relief obtained, the passage of time and the delays in hearing the FTT appeal.
At the hearing Mr Sheldon, for the Defendant, did not press any submission that the challenge to reg.33 certification on the first and remaining ground is academic. He was right not to do so because it is clear that the question of whether certification was unlawful and should be quashed is not academic but has real implications for the Claimant.
Regulation 33 Certification
I approach the lawfulness of the decision to certify under reg.33 as a question to be determined at the date the certificate was issued. At that time, although invited to do so, the Claimant had not communicated to the Secretary of State an intention to appeal the deportation order. In written submissions for the Defendant it was suggested that the Secretary of State cannot be taken to have known that the Claimant would appeal but I am quite satisfied that the Secretary of State ought to have taken into account the possibility of an appeal. After all, the reg.33 certification is only relevant if there is, or might be, an appeal against deportation.
At the time of the decision the Defendant did not have any information that would point to strong family ties in the UK. To the contrary, the information she had was that the Claimant had very little by way of family in the UK and was of no fixed abode. I do have regard to new evidence the Claimant has put forward since the decision insofar as it might be relevant to his Convention rights. However, looked at objectively his evidence as to family ties in the UK is weak and inconsistent.
The Claimant’s case is that following the decision of the Supreme Court in Kiarie and Byndloss his certification was unlawful.
In Kiarie and Byndloss, the appellants were both served with deportation notices after having been convicted of serious offences in relation to drugs. The Home Secretary had issued certificates under s.94B of the Nationality, Immigration and Asylum Act 2002 that it would not be unlawful under the Human Rights Act for them to be removed before any appeal against deportation had been begun or exhausted. One appellant would have been deported to Jamaica, the other to Kenya. They had no entitlement to apply to return for the purpose of appearing at the appeal, there being no applicable provision equivalent to reg.41 of the 2016 Regulations. The Supreme Court held that the certificates represented a disproportionate interference with the procedural protections of Article 8 of the European Convention on Human Rights and were therefore unlawful.
Lord Wilson noted that the appellants in Kiarie and Byndloss were what is termed “foreign criminals” and as such they faced a “formidable hurdle” before their appeals could succeed. Each such appellant “needs to be in a position to assemble and present powerful evidence” [55]. He had “grave doubts” they could possibly succeed on appeal “without giving oral evidence to the tribunal” [61]. The practical difficulties of giving evidence remotely from Jamaica or Kenya were very considerable.
Mr Dixon submits that certification in the Claimant’s case is unlawful for the same reason as it was held to be unlawful in Kiarie and Byndloss, namely that it would deprive the Claimant of fair and effective access to his appeal right.
As Mr Sheldon for the Defendant points out, there are some very significant differences between the present case and Kiarie and Byndloss.
Were the Claimant removed then he could apply under reg.41 for permission to return for the purpose of making submissions at the appeal in person. Moreover, the Secretary of State must grant permission, “except when [the appellant’s] appearance may cause serious troubles to public policy or public security”. This is a substantial legislative protection providing a significant point of distinction from the regime that applied in Kiarie and Byndloss.
The Claimant would be removed to Poland where he lived for his first 43 years. The practical difficulties in organising return to the UK for appearance at the appeal would be minor compared with those that the appellants in Kiarie and Byndloss would have encountered in trying to give evidence from Jamaica and Kenya.
The “formidable obstacles” facing a foreign criminal at appeal would not be so great for this Claimant. Mr Dixon suggested that at the Claimant’s appeal, the issues likely to require determination are:
The level of protection he would benefit from under the 2016 Regulations, which would in turn depend upon whether he can show continuous residence for 10, or failing that, 5 years;
The question of the risk the Claimant presents; and
The Claimant’s integration in the UK and the degree to which there are protective factors such as a relationship, family and work.
The Claimant would not face the same challenges on appeal as a convicted drugs offender who has served a substantial prison sentence.
The difficulties in preparing for any appeal in advance of the hearing would be less onerous for this Claimant than for the appellants in Kiarie and Byndloss. Mr Dixon points to the need to instruct a lawyer, to apply for exceptional funding, to gather evidence and to instruct an expert to deal with risk assessment. I am not sure that expert evidence would be required in a case such as this, but the other difficulties, whilst doubtless problematic, would not present very significant obstacles to the Claimant’s effective participation in his appeal. He would be able to communicate with any representative by telephone or Skype from Poland. He would be in a country where he had lived for over 40 years and would be able to make practical arrangements, to correspond and to communicate.
In Kiarie and Byndloss the appellants had been given no notice that deportation and certification were planned or may be possible. In the absence of prior warning they had not had an early opportunity to state their case whilst in the UK. Here, in contrast, the Claimant was given approximately four weeks to respond to the notice of 16 October 2017. I accept that he was in detention and that some of the matters raised in the notice are complex, but the notice is set out quite clearly and the Claimant was given adequate time to respond.
I proceed on the assumption that the Claimant does have an arguable appeal against his deportation and that by reference to Article 8 he has rights for his appeal to be effective. I also proceed on the basis that the onus is on the Secretary of State to demonstrate that certification was fair and proportionate.
In all the circumstances, on the facts of this case, I am quite satisfied that the Claimant would not suffer a breach of his Convention rights were he to be removed in advance of his appeal hearing and that the certification was lawful. It should have been anticipated that the Claimant might appeal and that removal before the appeal would cause him some difficulties in preparing for his appeal, but the certification was not disproportionate or unfair because:
There was a legitimate public interest in removing him from the UK as a matter of public protection. Parliament has provided a power of certification permitting removal prior to the commencement or completion of an appeal against deportation in circumstances such as prevailed in this case. Whilst the Claimant’s offending has not been of the most serious kind, it has been persistent.
He was known to have an entitlement to apply for permission to return for the purpose of attending the appeal to make submissions, under reg.41, and that was a substantial legislative protection. He was not a person likely to fall within the exceptions to the granting of reg.41 permission.
He would be returning to Poland, a country where he had lived for his first 43 years and from where it could reasonably be anticipated it would be practicable for him to prepare for his appeal and return to the UK for the appeal hearing.
He had been given reasonable opportunity to make representations and provide evidence as to why he should not be removed pending any appeal and had not done so.
Removal pending appeal would not render ineffective his right to bring an arguable appeal before the FTT.
Accordingly, I dismiss the claim that the reg.33 certification was unlawful.
Unlawful Detention
Mr Dixon contended in oral submissions that the Claimant’s detention was unlawful from its first day, on 16 October 2017. His argument at the hearing was that if the reg.33 certification was unlawful then the detention was unlawful from the beginning. I am not convinced by that argument in principle, particularly since the certification was one month after detention, but in any event I have found that the reg.33 certification was not unlawful and so the premise for the contention that detention was unlawful from the beginning, falls away.
The Claimant’s alternative case was that the detention became unlawful from about mid- to late November 2017 and, if not then, from about 26 January 2018.
The burden of proof in showing that there was lawful justification for detention lies on the Defendant. It is common ground that the “Hardial Singh” principles apply to the Claimant’s detention. Those principles were articulated by Lord Dyson in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at paragraph 22:
“(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”
The lawfulness of the detention, and continued detention, must be judged objectively on the facts as they presented themselves to the Secretary of State at each relevant time.
In R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at paragraph [48] Lord Justice Dyson, as he then was, said:
“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation… But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”
In R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Lord Justice Toulson accepted the submission that,
“[45] ….where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors and likely often to be decisive factors, in determining the reasonableness of a person’s detention that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made…
[46] A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and potential gravity of the consequences.”
It has not been contended that the first two Hardial Singh principles were breached in this case (references to” Hardial Singh 2” in the Amended Grounds were in error). In oral submissions the Claimant relied on breaches of the third and fourth principles.
Mid- to Late November 2017
The Claimant’s contention is that by the end of November 2017, at the latest, he had been in detention for at least six weeks and it could have been expected that deportation would not be effected for several weeks. The Secretary of State breached the fourth Hardial Singh principle by failing to act with reasonable diligence and expedition to effect removal. Mr Dixon directs the court’s attention to the seventh general principle in the Guidance on Immigration Bail for Judges of the FTT, “It is generally accepted that detention for three months would be considered a substantial period and six months a long period.” He also refers to Chapter 55 of Enforcement Instructions and Guidance where, at 55.3.2.4, it states that caseworkers should regard removal as “imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks.”
The Claimant contended that the guidance as to imminence was a good guide. However, notwithstanding such guidance, I am satisfied that there can be no hard and fast rules about what period of detention is reasonable, or what constitutes imminence in this context.
Taking an objective view and having regard to what was known at the time, the following factors are relevant (as at mid- to late November 2017):
The Claimant had been assessed as at high risk of absconding. The assessment was based on his criminal antecedents, including repeated breaches of court orders, and the information that he was of no fixed abode, had a drink problem, and that he had little by way of family in the UK. I am quite satisfied that those were the facts presented to and known by the Secretary of State at the time. Mr Dixon has not contended otherwise. The assessment of a high risk of absconding was clearly one which a reasonable decision maker could have made based on those facts. It was not irrational. Whilst a high risk of absconding is not a “trump card” rendering all other considerations irrelevant, it is a significant factor in any decision to continue detention. It was reasonably treated by the Defendant as a highly material factor at the detention reviews.
The Claimant had been assessed as being at high risk of offending. Again, this was based on undisputed factual evidence about his history of convictions, including ten in the previous two and a half years. It was not an irrational assessment. Whilst the harm that was liable to be caused by any re-offending was not likely to be of the most severe kind, the high risk of re-offending was a material factor which could reasonably be included in any decision to continue detention at this time.
The notice of deportation had only been given on 14 November 2017 and a decision was taken on 27 November 2017 that it would be too early to effect removal, as initially planned, on 28 November 2017. This was, I am quite satisfied, a reasonable approach which allowed the Claimant proper time to consider his position as a detainee facing removal, and the legal options open to him.
There were no practical obstacles to removal save for arranging escorted flights. It was known at this time that escorted flights would not be arranged until after 16 December but that would still allow for removal within a reasonable time. By 15 December 2017 a removal date had been secured for 22 January 2018. Again, the Secretary of State could reasonably conclude that removal would be within a reasonable time. Further, these arrangements tend to show diligence and expedition.
Considered objectively and realistically, I am quite satisfied that the continued detention was lawful at this time. The Secretary of State was giving the Claimant’s detention proper consideration and made decisions to continue detention on reasonable grounds. She acted diligently in making arrangements for removal. The Defendant is not obliged to establish that it was impossible to remove the Claimant any earlier. That would place too heavy a burden on the Defendant. What is required is an objective assessment of whether the Defendant acted with reasonable diligence and expedition. I am quite satisfied that the Defendant did so in November 2017.
26 January 2018
The Claimant submits that once Mrs Justice Lambert had made the interim order prohibiting removal pending permission or further order, and then the appeal before the FTT was adjourned on 26 January 2018, it should have been clear to the Secretary of State that she would not be able to effect deportation within a reasonable period. Hence, the third Hardial Singh principle was breached by continued detention thereafter.
The Claimant was released from detention upon permission being given by Mr Justice Lane. Mr Sheldon submits that it was that anticipated permission hearing, not the adjournment of the FTT appeal, that was the material event for the purposes of considering any breach of the third Hardial Singh principle. I agree. The reg.33 certification remained in place and, as at 26 January, no permission had been granted to challenge it. The interim bar to removal was in place “pending permission”. So, looked at objectively, it was the timescale for the permission hearing that was relevant.
Had permission been refused then the usual direction would have been that an application for reconsideration would not be a bar to removal.
I apply an objective test, looking at what was known to the Secretary of State at the relevant time. In fact, she made an application for the judicial review claim to be expedited, but the application as refused. Nevertheless, the case was listed for oral hearing on 15 February 2018. Looked at prospectively the Secretary of State can reasonably have anticipated resolution of the question of permission within a reasonable time after 26 January 2018, such that she would have been able to effect removal within a reasonable period. It would not have been clear to her that she could not effect removal within a reasonable period. Again, what is a “reasonable period” should be judged by reference to all the circumstances including the risks of absconding and re-offending. Considered objectively, those risks remained high.
Accordingly, I am satisfied that there has been no breach of the Hardial Singh principles in this case and that at all times the Claimant’s detention was lawful.
Conclusion
The certification under reg.33 of the 2016 Regulations was proportionate, fair and lawful, and the Claimant’s detention was at all times lawful. The Claimant’s claim for judicial review is therefore dismissed.