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

This is the substantive hearing of an application for judicial review for which permission has been granted by His Honour Judge Dight.

The Claimant (“EH”) is a national of Sudan who has been detained by the Defendant since 5 May 2017. He seeks a declaration that his detention is unlawful, a mandatory order for immediate release and damages pursuant to the declaration that his detention is unlawful.

The Amended Statement of Grounds from the Claimant dated 26 September 2018 puts the application on three bases (re-ordered to reflect the order in which they were argued). First, it is said that EH's detention is unlawful under Hardial Singh principles (ii), (iii) and (iv). Second, it is said that the Defendant has unlawfully acted or delayed in providing EH with or arranging accommodation or an address for release. Third, it is said that EH's detention was initially unlawful because the decision to refuse his protection and human rights claim contained a public law error.

The Claimant’s date of birth has been assessed as 1 July 1995, so he is now 23 years old. He arrived in the UK and claimed asylum on 1 October 2013. He claimed to be from the Tunjur tribe in Darfur. On the basis of the relevant country guidance case-law, if he had been accepted as a member of the Tunjur tribe, or any non-Arab Darfuri tribe, he would have been granted asylum.

On 4 December 2013, the Claimant pleaded guilty to common assault and a public order offence and was sentenced to a fine and subjected to a restraining order.

In April 2013, the Claimant committed the serious sexual offence of attempted assault by penetration on a woman in the street after dark. He choked the victim and she feared that she would pass out or die as a result. The sexual assault was violent and sustained. The Claimant only failed to reach the point of actual penetration because the police arrived and were able to intervene and stop him. The victim suffered severe psychological trauma, as well as some physical injuries, to the extent of suffering a breakdown which for a time prevented her from caring for her own children. The Claimant was drunk at the time. He has never shown any remorse, and has engaged in victim-blaming behaviour and refused to accept responsibility. He made protracted attempts to withdraw his guilty plea before sentence, which failed. On 27 May 2015 he was sentenced to 5 years and 10 months imprisonment for this offence and was required to sign the sex offenders register indefinitely. While serving the custodial sentence, he did not engage with programmes available to him to help him address his offending behaviour.

On 16 December 2014 (while the Claimant was in custody awaiting trial), his claim for asylum was refused. The claim that he was a member of a non-Arab Darfuri tribe was rejected.

While in prison awaiting trial, the Claimant was the subject of a psychiatric report from a consultant forensic psychiatrist dated 15 February 2015. He was diagnosed as having an adjustment disorder with mixed anxiety and depressive reaction, rather than a psychotic illness. The report agreed with probation that the Claimant was a high risk for sexual offending, and also a medium risk for general offending. As well as the Claimant’s refusal to accept responsibility for the sexual assault for which he was facing trial, the report noted wild, inappropriate and defiant behaviour during his probation interview.

In support of his claim for asylum, the Claimant’s advisers obtained a report from Peter Verney (“the Verney Report”) dated 7 April 2015. Mr Verney is a country expert on Sudan. The Verney Report concluded that the Claimant was correct in claiming to be a member of a non-Arab Darfuri tribe. This conclusion has never been accepted by the Defendant and I will return later to the legal action which is proceeding (not in this Court), still unresolved, as a result of that dispute.

Following the Claimant’s conviction and sentence for the sexual assault, the Defendant gave notice of a decision to deport him back to Sudan. The Decision Notice was dated 30 June 2015, and a Deportation Order followed on 13 May 2016.

The Claimant has no passport and he therefore could not be deported to Sudan without an Emergency Travel Document (“ETD”). Efforts to obtain an ETD for him were put in train, starting with referral on 25 July 2016 for an ETD interview. To date, those efforts have not succeeded, and he still has no ETD. I will return to the chronology of that in more detail when considering the substantive grounds of the application for judicial review, below.

On 17 November 2016, the Claimant was transferred from prison to a psychiatric hospital under section 49 of the Mental Health Act 1983, which applies to convicted prisoners suffering from mental illness. While he was there, a report from a consultant psychiatrist dated 31 January 2017 diagnosed him as suffering from psychotic illness: initially, severe depressive disorder with psychotic symptoms and, subsequently, catatonic schizophrenia. The report said that his illness was being treated with medication and therapy.

On 27 February 2017, the Home Office agreed to withdraw its previous refusal of the Claimant’s asylum application (on 16 December 2014) and its decision to deport him (on 13 May 2016). Instead, it agreed to “reconsider [his] case in the light of his current circumstances.”

However, its subsequent decisions were also unfavourable to the Claimant’s applications. On 8 March 2017, it issued a fresh decision to deport, based on the criminal conviction and sentence, but it noted the claim for asylum which had been made on 1 October 2013. It stated “That claim has not been considered with this decision”. It invited further representations on that aspect. It drew attention to Article 33 of the UN Convention Relating to the Status of Refugees, which excludes asylum claims when there are “reasonable grounds for regarding [the claimant] as a danger to the security of the country” or where, having been convicted of a particularly serious crime, he “constitutes a danger to the community of the protecting state”. It proposed to apply the presumption in section 72(2) of the Nationality, Immigration and Asylum Act 2002 against the Claimant in both those respects but allowed the Claimant time to rebut the presumptions if he could, at which point “a decision about whether section 72 applies will be taken on the basis of all available information”.

The Claimant’s representatives made submissions resisting deportation in a letter of 5 April 2017. They said he was from a non-Arab Darfuri tribe with a fear of persecution, and enclosed the Verney Report. They said that deportation would be a breach of his Convention rights, including his rights under Articles 2, 3 and 8 of the European Convention on Human Rights, partly because of its effect on his mental health.

The Home Office on 26 April 2017 issued a further decision, rejecting those submissions and refusing the protection and human rights claims. I go into the basis of the rejection in more detail when considering the third ground of the application for judicial review, below.

Shortly before this, it was decided that the Claimant was well enough to go back to prison from the psychiatric hospital, and he was returned to prison, therefore, on 30 March 2017.

On 5 May 2017 the Claimant was released from prison on licence (“the Licence”). He had served the custodial period of his sentence of 5 years and 10 months and the remainder of the sentence was to be served outside prison, on licence, expiring on 1 February 2020. As usual, the terms of the Licence were designed to ensure that, although the Claimant was no longer in prison, the public would be protected, re-offending would be prevented, and he would be helped to resettle successfully into the community throughout the period of the Licence (paragraph 1 of the Licence). To that end, stringent conditions were imposed by the Licence, which ran to 3 pages of detailed requirements and conditions. They included supervision by the probation service, permanent residence at an approved address, a curfew between the hours of 8 pm and 7 am daily, home visits from a mental health worker, attendance at appointments with a psychiatrist or medical practitioner, full cooperation with any care or treatment they recommended, and a requirement to report to staff at approved premises at 2 pm every day. Any breach of the conditions (and, of course, any re-offending) would render the Claimant liable to recall to prison. The conditions of that Licence continue to apply today.

In view of the pending deportation, the Claimant was not, in fact, granted his liberty on release from prison on 5 May 2017. Instead, he was immediately transferred to immigration detention, where he has remained until the hearing before me. A minute of the decision to place him in immigration detention was drawn up on 3 May 2017. He was rated as a high risk for absconding, a high risk of re-offending and a high risk of harm to the public. Outstanding barriers to deportation were listed as the need to obtain an ETD, and a possible appeal. The date for obtaining an ETD was estimated at “6+ months”.

An appeal against the decision to deport was, as anticipated, lodged by the Claimant with the First Tier Tribunal (“FTT”) on 10 May 2017. The hearing was due to take place on 4 August but it was adjourned to 29 November 2017. That hearing was also adjourned, to 13 February 2018.

On 22 March 2018, the FTT issued its decision, which was to dismiss the appeal. The FTT judge upheld the decision that the Claimant had not only been convicted of a particularly serious crime but also posed a danger to the public. She also found that the Claimant was excluded from humanitarian protection because he constituted a danger to the community. She rejected a claim that he was a minor. She found that his mental health had been stable for a year and did not find that he required future treatment, therapy or medication. She rejected his Article 3 claim that he would face a real risk of suffering, death or deterioration in his mental health or need for treatment if removed. She also rejected his Article 2 and Article 8 claims. Finally, in relation to the Claimant’s tribal origin, she considered but did not accept the conclusion of the Verney Report. She took into account, also, the other evidence before her, including oral evidence, and decided that the Claimant was not a member of a non-Arab Darfuri tribe as he claimed.

The FTT refused permission to appeal on 13 April 2018. On 3 May 2018, the Claimant lodged an application to appeal with the Upper Tribunal. While this was pending, two applications for bail were made.

On 18 September 2018 the Upper Tribunal granted permission to appeal the FTT decision, on the basis of the FTT Judge’s treatment of the Verney Report and her assessment of witness evidence. Meanwhile, on 4 September 2017 the Defendant had issued a supplementary decision maintaining the decision to refuse the Claimant’s protection claim. It is accepted that the decision of 4 September was lawful.

The application for judicial review of the Defendant’s immigration detention decisions (and action in relation to an address for release) came before me on 16 October 2018.

The claim for unlawful detention on Hardial Singh principles relies on the well-known summary of those principles (named from R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704) by Lord Dyson JSC in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245 at paragraph 22:-

“It is convenient to introduce the Hardial Singh principles at this stage… It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46 correctly encapsulates the principles as follows:

(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 Claimant relies on principles (ii), (iii) and (iv) but all four have some application to this case. Principle (i) shows that the issue for me is not whether the Claimant is a dangerous person who should be detained – the question is whether he is a person who should be detained, specifically, with a view to deportation. Whether he should be detained on some basis other than an intention to deport (i.e. in the absence of a realistic prospect of deportation within a reasonable period), because of his offending behaviour and danger to the public, is not for this Court but for the criminal courts. In particular, that was the question for the Crown Court which sentenced him for the attempted sexual assault. The sentence passed by that Court is still running.

Principles (ii) and (iii) go together. The Claimant may be detained pending deportation, but only for a period that is “reasonable in all the circumstances” and, if it becomes apparent that deportation will not be effected within such a period, detention does not continue until the end of the reasonable period but (subject to any period of grace for making necessary arrangements), has to be discontinued (assuming it has, before this became apparent, already begun).

What is a reasonable period is very much a question of judgment upon the facts of every individual case, and that judgment, when brought before the Court, is made by the Court and not by the Secretary of State: R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 per Toulson LJ at para 90.

The factors to be taken into account are deliberately not listed comprehensively by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245 because they may be so many and various depending on the facts of the particular case. But (as he observes at para 104, citing his own earlier observations in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196) they certainly include:

“…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 the Claimant’s case, there is a high risk of harm to the public and a high risk of absconding. These may make the reasonable period of detention longer than it might have been in another case.

The Claimant has been in detention of one sort or another since he committed the attempted sexual assault in April 2013, but he has been in immigration detention only since 5 May 2017. When taking into account the period of detention for the purposes of assessing the reasonable period under Hardial Singh, it is the period since 5 May 2017 which is important. At the date of the hearing before me, that was a period of 17 months.

There has to be a “realistic prospect” that deportation will take place within a reasonable time: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245 at para 103. There is guidance in R (ZA) (Iraq) v Secretary of State for the Home Department [2015] EWCA Civ 168 at para 21 that, the longer the period of detention has been, the higher the prospect of success may have to be for it to be sufficiently “realistic” for these purposes.

In the Claimant’s case, I see the most important obstacle to removal as being the Claimant’s lack of a passport, and difficulties in obtaining an ETD for him, since he could not travel at all without one. An ETD has still not been obtained, although efforts to get one began in August 2016, considerably before immigration detention began in May 2017. The first question I will address, therefore, is whether there was a realistic prospect of getting an ETD before the expiry of the Hardial Singh “reasonable period” of immigration detention in the Claimant’s case. To answer that, it is necessary to summarise the course of events, which appears both from the papers and from the witness statement of Timur Dellaloglu (Senior Executive Officer within the Home Office Immigration Enforcement Returns Logistics unit) dated 9 October 2018.

The Claimant had an ETD interview on 9 August 2016 and an application for an ETD was submitted directly to the Sudanese Embassy in London by the Home Office on 31 August 2016. At this point, he had been sentenced and was in prison. Notes at the time show that he wanted to be deported. No ETD was forthcoming (the notes show there was no supporting evidence) and the minute of the decision to deport dated 3 May 2017 estimated the time required to obtain an ETD as “6+ months”. Detention reviews on 1 June, 28 June, and 26 July 2017 all maintained this estimate of “6+ months”. The detention review of 23 August 2017 showed that progress was being made, and detailed what had happened to date as follows:

“On 31 August 2016 an ETD application was forwarded to the Embassy of the Republic of Sudan; on 6 May 2017 an email was sent to the RL Team [i.e. Returns Logistics] asking them to arrange a face to face interview. On 10 May 2017 a response was received from RL informing me a face to face interview was booked for 31 May 2017 and I should email DEPMU to request a transfer movement order.

On 2 June 2017 an email was sent to the RL1 to confirm whether the face to face interview went ahead, or not, and for an estimate timescale for the outcome; on 5 June 2017 their response was received which stated “The subject attended the Embassy but the Embassy Official required a relative’s contact number in Sudan, in order to establish the nationality of the subject. The subject stated he will provide a contact number. Please forward the contact number to be obtained from the subject.”

The case owner sent an email to HMP High Down asking them to ask [the Claimant] for details of his relatives in Sudan; on 7 June 2017 a response was received from the prison stating he has no relative in Sudan; on the same day, an email was sent to the prison requesting telephone records for [the Claimant] and on 14 June 2017 a response was received from the prison stating “They will post it as they have problem with the fax, therefore full address forwarded to the prison.”

On 30 June 2017 telephone records were received and it shows that [the Claimant] has been contacting his mother Nabi Hussin in Arub; on 7 July 2017 email was sent to CSI asking them to contact his mother and find out from her whether she has any relative(s) in Sudan. On 10 July 2017 details of his uncle in Sudan was received and forwarded to the RL and on 11 July 2017 RL forwarded this information to the High Commission and there is no timescale but on 4 August 2017, RL confirmed they have contacted the Embassy; on 16 August 2017 email was sent to the RL for an update and response received…”

On 7 September 2017 the Home Office telephoned the Sudanese Embassy and was told that efforts to contact the Claimant’s family had not been successful but would continue. A detention review on 24 November 2017 said:

“I note the appeal [to the FTT] has been adjourned further and we must closely monitor a new hearing date. I further note efforts to contact relatives in Sudan and efforts with returns Logistics are ongoing. Whilst we continue to push this we must look at obtaining license conditions and a possible release address should this become protracted.”

A detention and case review on 19 December 2017 said: “…efforts to obtain an ETD are stalling and we have not had the information from family members.”

On 4 January 2018, an email from a Home Office employee in the Litigation Operations department said “It appears we currently have no prospect of securing an ETD therefore his detention becomes difficult to justify…” A case progression panel on 16 January 2018 considered “there are factors which suggest that removal within a reasonable time frame, in the particular circumstance of this case, may not be possible”. They said “there is no prospect of removal, due to the unknown timescales of obtaining a travel document”.

On 28 February 2018, a Home Office email to the prison asked that the Claimant be told that “the Sudan Embassy has confirmed they cannot get hold of his family in Sudan. Please ask him to get in touch with his family who are to contact Sudan Embassy and ask them to liaise with the Sudan Embassy as soon as possible.” A detention and case progression review on 13 March 2018 records that Returns Logistics were told on 5 March:

“because [the Claimant] failed to provide any contact numbers of a relative in Sudan, no further action from the Sudanese Embassy can be taken in order to establish his nationality and as such, no further action with the Embassy if we cannot provide a family contact details in Sudan. A referral was submitted to Returns Logistics for another ETD telephone interview appointment to be confirmed and to discuss how to progress ETD.”

The prison emailed on 2 March 2018 to say that the Claimant said “he could not get in touch with his family in Sudan due to the fact he believes they live in Libya.” A referral was submitted to Returns Logistics “for guidance on how to progress ETD.” The detention and case progression review on 10 April 2018 authorised a further 28 days of detention, but the authorising officer called for “A genuine assessment by RL conducted into the likelihood of an ETD being obtained from Sudan; this would seem unlikely to me.”

There is then a considerable period without any further progress or ideas about how the ETD might be obtained for the Claimant (the problem being how to find evidence of his nationality acceptable to the Sudanese authorities). In the months from March 2018 the papers focus, instead, on other questions, such as the possibility of a release address, the Claimant’s attempts to appeal the FTT decision, and the judicial review.

Shortly before the hearing before me on 16 October 2018, a new idea emerged. The Claimant was included in a review list sent to the Sudanese Embassy on 13 September 2018 which, as explained in the evidence of Mr Dellaloglu, is “a list of outstanding cases, which is sent to the Embassy on a monthly basis”. On 27 September, an internal Home Office email asked Returns Logistics “what are our expectations of actually obtaining an ETD”. In response, Returns Logistics emailed the same day:

“I’ve asked Tim to meet with the Sudanese Embassy – the number of stuck cases are starting to stack up.

There is some light at the end of the tunnel though. The authorities in Khartoum have agreed that we can share fingerprints (for non-compliant cases) for them to check against their national database. We’ve yet to test this offer – for a number of reasons. But we will press with the authorities again. This will however take some time for us to see through.”

Two points are made on behalf of the Claimant about this suggestion. The first is to observe that he is not a “non-compliant case” for whom this scheme was, apparently, envisaged. He was a compliant person, in respect of whom efforts to find some other basis for proving his nationality had not been successful. The second point refers to the only evidence I have been shown about the national fingerprints database, which is in the form of a press article in 2011, headlined “Sudan to launch advanced, nationwide civil registry in mid-May”. The article quotes the Minister of the Interior as saying that the target was to register “eight million people by the end of 2011, out of total target population of 16 million people”. On the basis of this report, it is submitted to me that the Claimant, whose own account is that he left Sudan in 2009, is not likely to have his fingerprints on a database which was being set up two years later.

The first of these points is supported by an email from Mr Dellaloglu (whose witness statement I have referred to) dated 1 October 2018 and saying:

“…I have a meeting with the Sudanese Embassy on 16 October (first available date) at which point I will raise this case in person. As suggested… I will ask if [the Claimant’s] fingerprints can be shared against their national database.

However I cannot guarantee that the Embassy will comply with our request (given that he was compliant), nor can I provide a timescale for these checks to be completed.”

I think both the points raised about the fingerprint database as a basis for establishing the Claimant’s nationality are compelling and that this new idea does not provide a realistic prospect of solving the difficulties already encountered in obtaining an ETD for the Claimant within a reasonable time or, indeed, at all. That does not mean it cannot be pursued, but it does mean that it cannot be relied upon as a basis for justifying continuing immigration detention.

That makes it necessary to fall back on the earlier efforts and the earlier history. In assessing what I consider to be a reasonable period for the detention of the Claimant pending deportation on the facts of this case, I bear in mind all the factors I have identified from the authorities in paragraphs 29-32 of this judgment. Amongst those factors, the high risk of harm to the public and the high risk of absconding justified detention for a longer period in the Claimant’s case than might apply to other detainees in other circumstances. I am satisfied that, at first, there was a sufficient prospect of obtaining an ETD within a reasonable period to justify continuing detention. The obstacle was proving his nationality but it seemed that, provided a telephone contact could be provided for relations of the Claimant, this might be achieved to the satisfaction of the Sudanese authorities. The Claimant was compliant, and never refused to provide what contact details he could. It is true that there was never a precise timescale for the process (the expectation always being expressed in terms of a period in excess of 6 months), but it did at first seem to be moving along sufficiently, in my judgment, to justify detention in the meantime without a reasonable period being exceeded.

By the 19 December 2017 detention and case review it seemed, as the review put it, to be “stalling”, but I think it was reasonable to expect that persistent effort would enable it to succeed in due course and within a reasonable time. Despite the pessimism expressed by the notes in January 2018, these were not written by Return Logistics or those best placed to judge the prospects of success in the case of a return to Sudan but were, it seems, based particularly on the continuing passage of time. The passage of time was relevant and important but, even if suitable release accommodation had been immediately available (a subject to which I will return), it was not likely to secure the protection of the public pending deportation as fully as detention. It was reasonable, in my judgment, to persist with the detention because there was good reason to expect that contact details could and would be obtained before too long given that only a telephone number was needed. The Claimant never presented as a person who was not compliant. That hope, however, faded as the Sudanese Embassy confirmed that it had not got the contact details it needed (confirmed by 28 February 2018) and, most importantly, when the Claimant informed the Home Office on 2 March 2018 that “he could not get in touch with his family in Sudan due to the fact he believes they live in Libya”. At that stage, unless some other avenue could be found, the prospect of obtaining an ETD became, in my judgment, too remote for it to be expected within a reasonable period. It became, on the contrary, at that point, unlikely. No other avenue was suggested, until the recent consideration of doing something with the fingerprint database, which I have already discounted.

The ETD was not the only obstacle to deportation. There was also the Claimant’s appeal to the FTT, which he lodged on 10 May 2017, within days of the start of his immigration detention. The hearing date was originally to be 4 August 2017, which was well within a reasonable period for immigration detention in this case. Subsequent adjournments were for relatively short periods, also (from 4 August to 29 November 2017, and from November 2017 to 13 February 2018) so I think the FTT appeal did not, in itself, mean that the Secretary of State would not be able to effect deportation within a reasonable period (Hardial Singh principle (iii)). The FTT appeal was dismissed on 22 March 2018, the hearing having concluded on 13 February 2018. This was close to the 2 March 2018 date which I have identified as a turning point for the evaluation of the prospects of the Claimant getting an ETD within a reasonable period. I do not, therefore, consider that the FTT appeal accelerated the date from which the Claimant’s detention should be considered unlawful under Hardial Singh principles based on the ETD problem.

I also do not think that Hardial Singh principle (iv) adds anything (“The Secretary of State should act with reasonable diligence to effect removal”.) I consider that the Secretary of State, by his employees at the Home Office, did act with reasonable diligence to get an ETD for the Claimant. They did what they could to identify the requirements of the Sudanese Embassy, and they took appropriate steps, in appropriate timescales, to press both the Sudanese Embassy and the Claimant to do what was necessary. There was a limit to what they could do and how quickly they could get it done, given that, ultimately, the process was in the hands of the Sudanese authorities and the information the Sudanese required was in the hands of the Claimant rather than the Home Office. Neither the Sudanese nor the Claimant were reacting particularly quickly.

The Claimant also complains about progress in obtaining release accommodation for him, but Hardial Singh principle (iv) requires reasonable diligence to effect removal, not to obtain accommodation. The question of accommodation did, however, become acute when, after 2 March 2018, there was no longer a realistic prospect that deportation would take place within a reasonable time because of the difficulty in obtaining an ETD.

The Claimant could not have been released immediately on 2 March 2018, because it was a condition of his Licence that he should go to approved premises: that is, premises approved by the probation service, rather than the Defendant (paragraph 5.v. of the Licence). Approved premises for a man with the Claimant’s offending and psychiatric history were not readily available. The Home Office began active enquiries about approved premises on 13 February and on 16 February 2018 was awaiting confirmation of a suitable address from probation services. The Home Office emailed Offender Management urgently on 20 February 2018 saying:

“In principle the Home Office will agree to release offender if you can provide an ‘approved premise’ which has been deemed suitable by you, and the date he can reside at the address we will release him from detention. I know this can take between 6-8 weeks so I have also requested today that [the Claimant] provide another release address and as soon as I have it I will forward to you.”

No approved premises were, however, provided within that timescale. Since it was not formally admitted that continued immigration detention was unlawful, it may be that the necessary sense of urgency was not present on one side or the other. I note that, after grant of support under Schedule 10 of the Immigration Act 2016 was authorised by the Home Office on 16 August 2018 (as the hearing before me approached), such an address was located by the Home Office three weeks later, on 4 September 2018, and forwarded to Offender Management. That fell through for reasons I will not go into. It was not until the date of the hearing before me, on 16 October 2018, that approved premises were offered to the Claimant.

I conclude that, allowing a reasonable period for a place in approved premises to be obtained for the Claimant to go to, he ought to have been released to approved premises, and subject to the terms of his Licence, within 28 days of 2 March 2018. It follows that his immigration detention was unlawful from 30 March 2018. On 16 October 2018, at the conclusion of the hearing before me, I ordered release subject to a period of time for the essential arrangements for public protection contained in the Licence to be put in place by co-operation between the relevant agencies. The Claimant was then released, almost immediately, on 17 October 2018. I will direct that damages should be assessed by the Central London County Court, if they cannot be agreed between the parties. They will cover the whole period of detention from 30 March 2018 but they will, no doubt, take into account the fact that the Claimant in this case was not entitled to be entirely free when released from immigration detention; he would still have been subject to the restrictions on his liberty imposed by the terms of his Licence.

The Claimant’s second ground for judicial review is a claim that the Defendant unlawfully acted or delayed in providing him with or arranging accommodation or an address for release. The Claimant submits, on this basis, that he was unlawfully detained from either 16 January 2018 or alternatively 21 August 2018 or from some other date to be determined by the Court.

Whilst there remained a realistic prospect that the Secretary of State would be able to effect deportation of the Claimant within a reasonable period, I do not think the Secretary of State was wrong to keep the Claimant in immigration detention, given (amongst the other relevant matters I have identified) his high risk of harm to the public, as well as his high risk of re-offending and high (or at least significant) risk of absconding.

The Defendant had power to provide an address under section 4(1)(c) of the Immigration and Asylum Act 1999 (as it stood before repeal with effect from 15 January 2018). The power did not impose a duty, except a duty to operate its policy fairly and rationally (R (Sathanantham and others) v Secretary of State for the Home Department [2016] EWCA 1781 (Admin) per Edis J at paras 69-70; see also paras 85-86). I find no breach of either duty in this case. After 15 January 2018, section 4(1)(c) was repealed and replaced by paragraph 9 of Schedule 10 of the Immigration Act 2016. This also provides the Secretary of State with a power and not a duty (paragraph 9(2)) and it is a power which is to be exercised only in “exceptional circumstances” (paragraph 9(3) of Schedule 10). These include (by the Immigration Policy published on 10 August 2018) cases involving foreign national offenders assessed as being at a high risk of causing serious harm to the public, or at high risk of harmful reoffending against an individual “where that person has nowhere suitable to live in accordance with their probation licence and/or multi-agency public protection arrangements (MAPPA), for a limited period, or otherwise at the discretion of the Home Secretary in the interest of public protection”.

When there ceased to be a realistic prospect that the Secretary of State would be able to effect deportation of the Claimant within a reasonable period on 2 March 2018, the address for release had to be approved premises (that is, premises approved by the probation service as required by the Licence). I have already decided that, this should have been achieved within 28 days, by 30 March 2018. That did not happen.

Given my decision on the first ground, it does not seem to me that allegations of delay in providing accommodation or an address for the Claimant’s release after 30 March 2018 require detailed consideration. I have already decided that immigration detention after 30 March 2018 was unlawful and that the Claimant should have been released from immigration detention and placed in approved premises, subject to his Licence, after 30 March 2018.

In relation to the period before 30 March 2018, the Claimant says he was unlawfully detained from 16 January 2018. On 4 November 2017, the Defendant rejected an application for accommodation under section 4 of the Immigration and Asylum Act 1999. There was no challenge to that decision and it is not the subject of the present judicial review; it would be out of time, anyway. The detention review on 24 November 2017 stated the risk of absconding as high, the risk of re-offending as high and the risk of harm to the public as high, with cogent reasons. The recommendation was continuation of the immigration detention for a further 28 days. This was accepted by the authorising officer, which seems to me to have been reasonable. The authorising officer noted the obstacles to removal, and said “we must look at obtaining license conditions and a possible release address should this become protracted”.

The detention and case progression review on 19 December 2018 stated in the recommendation that the Claimant “presents a genuine, present and serious threat to the safety of the public in the UK. His risk of absconding, harm and re-offending is considered to be high by Probation and Immigration Enforcement which outweigh the presumption for release in his case”. The authorising officer accepted the recommendation and said the case must continue to be progressed, although “if there is no movement we should submit for release consideration”. It was reasonable and lawful to maintain detention unless and until there was no realistic prospect of deportation within a reasonable period, and that remained the position until March 2018.

I do not consider that forward-looking references to possible release to appropriate addresses in the course of January and February 2018 changed that, or provide a basis for deciding that the Secretary of State unlawfully acted or delayed in providing the Claimant with or arranging an accommodation address for release before 30 March 2018. The Defendant’s forward-planning was contingent on a change to the existing position, which was that the time for release had not come.

The detention and case progression review on 16 January 2018 confirms that. The recommendation was still against release, with reasons. The authorising officer did not order release. What he did was to approve steps to be taken towards possible future release. He said:

“[The Claimant’s] case has been assessed for release under current criteria as outlined in Chapter 55 of the Enforcement Instruction and Guidance Manual based on the presumption of release and alongside the Adults at Risk Policy.

[The Claimant] has been convicted of a serious sexual offence; he is noted as a MAPPA Category 1 offender and is required to sign on the sex offenders’ register indefinitely. He has been assessed as posing a high risk of harm to the public. [The Claimant] has amassed two convictions with the severity of his offending increasing. It is further noted he has not assessed any of his offending behaviour and has shown poor behaviour in custody. He is considered to pose a high-risk of re-offending.

I note the position of this case. I agree given the barriers at this time we should now finalise a release referral.”

On 24 January 2018, there was a note that a release referral had been returned for amendments, and work regarding Schedule 10 accommodation needed to commence. The detention and case progression review on 13 February 2018, whilst again including reasons for not ordering immediate release, concluded with the authorising officer stating: “I note the position of this case. We must monitor the appeal outcome. The release referral consideration will also be undertaken within this review window.” Enquiries were subsequently made about a possible approved premises address acceptable to the probation services.

On 20 February 2018 Schedule 10 Accommodation “confirmed that [the Claimant] did not fit the criteria for their accommodation due to him being a failed asylum seeker”. He was, of course, appealing that failure. But, be that as it may, the Defendant did not change course, and an officer emailed Offender Managers on the same day saying “In principle the Home Office will agree to release offender if you can provide an ‘approved premise’ which has been deemed suitable by you, and the date he can reside at the address we will release him from detention. I know this can take between 6-8 weeks…”

The authorising officer at the detention and case progression review on 13 March 2018 said: “I am aware as to the presumption of liberty. I note that a release referral has been submitted. I am content to authorise a further 14 days detention for that to be considered. It would seem pragmatic that release is agreed, unless there are any significant changes in this case over the next 4 weeks.”

That takes the history up to the date of 30 March 2018 when I have decided that detention became unlawful on the first ground, including time after 2 March 2018 for a release address to be found. I do not find that the Defendant acted unreasonably or unlawfully, or delayed unreasonably or unlawfully, in failing to provide the Claimant with or to arrange an accommodation address for his release before 30 March 2018. I therefore reject the claim that his detention was unlawful at an earlier date on this ground.

The third and final ground for the Claimant’s judicial review claim is that the Secretary of State’s decision to refuse his protection and human rights claim on 26 April 2017 (see paragraph 16 above) overlooked the Verney Report. This is said to be a public law error.

The Claimant accepts that, even if there was a public law error, it caused no loss, and would entitle him to no more than nominal damages. The decision of 26 April 2017 was supplemented by a fresh decision on 4 September 2017 reaching the same conclusion although taking account of the Verney Report. No loss was caused by the initial oversight because the decision, even if the Verney Report had been considered, would have been the same.

This does not dispose of the public law claim because the tort of false imprisonment does not require proof of causation, provided the error is material in public law terms: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245 at paragraphs 62, 68 and 71.

The decision of 26 April 2017 was a substantial document consisting of 17 pages of single-spaced type. It was headed “Home Office – Notice of Decision” and sub-titled “Decision to refuse a protection and human rights claim.” This was the fully considered decision which was intended to take account of representations received from the Claimant (see paragraphs 14-16 above).

It referred to those representations, dated 5 April 2017. It set out the Claimant’s immigration history, and his criminal convictions and sentences. In a lengthy section entitled “Reasons for deportation”, it referred to his conviction for attempted assault by penetration and his sentence of 5 years 10 months imprisonment (including the sentencing remarks) and their implications. It cited Article 33 of the Refugee Convention and section 72 of the Nationality, Immigration and Asylum Act 2002 and the rebuttable presumption that his crime was particularly serious and that his continued presence in the UK constituted a danger to the community. It stated (and no complaint is made of this):

“Your representatives have failed to make any representations to rebut the presumption that your crime was particularly serious or that your continued presence in the UK constitutes a danger to the community.”

It referred to the Claimant’s failure to complete rehabilitation measures in custody, and other matters. It said (and no complaint is made of this):

“…it is concluded that section 72 of the 2002 Act applies to you and your application for asylum has been refused on grounds that the Refugee Convention does not prevent your removal from the UK.”

It then turned to a section headed “Your asylum claim”. It referred to his application for asylum and for recognition as a refugee under the Refugee Convention, and also to the possibility of limited leave to remain in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave. It summarised the statements and evidence that had been put forward, but omitted from this the Verney Report. It referred to his claims under Articles 2 and 3 of the European Convention on Human Rights. It accepted his claims about his own identity and nationality. It stated:

“The material facts of your claim have been examined and either rejected, accepted or they remain unsubstantiated.”

It rejected his claim that his father and brothers were involved with the Justice and Equality Movement (“JEM”). It did so before, and without reference to, consideration of whether he was a member of the non-Arab Darfuri tribe that he claimed to belong to (the Tunjur Tribe). The fact that the Verney Report was not referred to at this point therefore does not appear to me to be an error.

However, it then turned to a section entitled: “Claims of fear based on being a member of the Tunjur tribe”. Those claims were rejected in a relatively short section, and a central part of the reasoning was:

“It is considered that if you were part of the tribal group you claim to be a member of, you or your legal representatives would have taken some steps to have this independently verified given that this forms the basis of your asylum claim.”

That was a serious mistake. It was a point completely contradicted by the Verney Report, which had been expressly referred to and enclosed with the submissions on the Claimant’s behalf dated 5 April 2017.

The remainder of the decision is clearly based to a significant extent on that mistake. It underpins the next section, headed “Assessment of future fear”, in which the claim of a well-founded fear of persecution is rejected. It is also the foundation of the next section, headed “Inclusion in the Refugee Convention”, which refers to his claim to be a member of a non-Arab tribe. These two sections reject his claim to be “a genuine refugee in need of international protection”.

The next section, headed “Consideration of Humanitarian Protection”, considers the Claimant’s position under the Immigration Rules and Articles 2 and 3 of the European Convention on Human Rights. It refers to paragraph 339D of the Immigration Rules, the Claimant’s conviction for a serious crime and the danger to the community. It then rejects the claim for humanitarian protection on the following basis:

“It is therefore considered that not only do you not qualify for Humanitarian Protection, but that also because of your conviction and imprisonment, you have been excluded from a grant of Humanitarian Protection under paragraph 33D(iii) of the Immigration Rules.

Furthermore, notwithstanding that your actions have made you ineligible for Humanitarian Protection, your claim for Humanitarian Protection under Articles 2 & 3 do not breach the threshold for a successful claim.

You stated that there is a real risk that you would be persecuted in Sudan due to the fact that family members were involved with the Justice and Equality Movement (JEM) and that you are a member of the Tunjur Tribe, that your removal would therefore be in contravention of Article 2 or 3 of the ECHR.

However, for the reasons already outlined above, it is not considered that you have demonstrated a real risk of such treatment. It is therefore concluded that your removal from the United Kingdom will not place the United Kingdom in violation of Article 2 or 3.

Therefore, you do not qualify for Humanitarian Protection.”

After a brief section rejecting discretionary leave, the decision proceeds to the following “Summary Paragraph”:-

“Your claim has been carefully considered, but you do not qualify for asylum or Humanitarian Protection. Your claim was also considered in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave and you do not qualify.

In the light of all the evidence available, I have decided that you have not established a well-founded fear of persecution so you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended).”

The decision concludes by rejecting claims under Article 8 based upon a right to private and family life, and under Article 3 based upon his mental health.

The Secretary of State does not dispute the error in overlooking the Verney Report, but does dispute that it was material: see R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245 at paragraphs 68, 69 and 87. Lord Dyson said at paragraph 68:

“…the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain.”

At paragraph 69, Lord Dyson gives an example of a public error, and says “The error was one which was relevant to the decision to detain him. It was capable of affecting the decision to detain him and did in fact do so.” In saying that, Lord Dyson was not inserting a requirement of causation of loss, which he rejects elsewhere in his judgment. At paragraph 86, Lord Dyson rejects propositions that there should be an element of bad faith or improper purpose, or alternatively, that authority to detain should be vitiated only by failure to have regard to a material consideration which had an effect on the detention, saying: “I have accepted at paras 68 and 69 above that the detention must be vitiated by an error which is material in public law terms and have attempted to explain there what I mean by that.”

I reject the Secretary of State’s submission that the error in this case was not material in public law terms or that it did not bear on the decision to detain. Had it gone the other way, the Claimant would no longer have been held in immigration detention with a view to deportation. From the passages I have cited, it is clear that the failure to take account of the Verney Report undermined the reasoning of the Home Office decision at a number of critical points. It was not simply part of the general background, nor did it form part of merely alternative reasoning put forward after a complete decision had been reached on some other basis which would have been sufficient to dispose of the whole decision. If this had been a judicial decision, the mistake could not have been said to be obiter dicta. It was part of the operative reasoning. I accept that it made no difference to the outcome, but that is not equivalent to the question of whether it was material. Playing such a crucial part in the decision as it did, I have no doubt in concluding that the mistake about the Verney Report was material, and the public law error is therefore established. The Claimant is entitled to nominal damages for this.