Month: April 2018

WANDY SANNEH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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Counsel:
For the claimant: Becket Bedford, Tiki Emezie 
For the defendant: Emily Wilsdon

Solicitors:
For the claimant: Dylan Conrad Kreolle 
For the defendant: Government Legal Department

R (on the application of WANDY SANNEH) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2018)
[2018] EWHC 800 (Admin)

QBD (Admin) (Michael Kent QC) 13/04/2018

IMMIGRATION

APPEALS : DEPORTATION ORDERS : DETENTION : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
A Gambian national’s challenge to the lawfulness of his detention failed except in respect of a period conceded by the secretary of state. The claim was transferred to the County Court for the assessment of damages in respect of the conceded period.
The claimant Gambian national applied for judicial review to challenge the lawfulness of his detention.

The claimant had been served with notice that he was liable to deportation while serving a sentence of imprisonment for breaching a restraining order that prevented him from having contact with his wife. He objected to deportation on the basis that it was contrary to his ECHR art.8 rights because of the presence of his wife and children in the UK. The defendant secretary of state rejected his objection and in December 2014 certified his human rights claim under the Nationality, Immigration and Asylum Act 2002 s.94B. The effect of the certificate was that the claimant was not allowed to proceed with an appeal against deportation unless he left the UK. He was detained on 19 August 2016 and served with removal directions. On 9 November 2016 his claim for asylum was refused and certified as clearly unfounded pursuant to s.94 of the Act. His fresh asylum and human rights claim was also refused. He began judicial review proceedings in the Upper Tribunal challenging the certification under s.94B. The UT concluded that the secretary of state had been entitled to certify under s.94 both the asylum and human rights claim based on art.8. The s.94B certification was withdrawn following the Supreme Court’s decision in R. (on the application of Byndloss) v Secretary of State for the Home Department [2017] UKSC 42. The claimant was then able to proceed with an in-country appeal, which had the effect of suspending his removal. He remained in detention. On 9 August 2017 he started the instant claim for judicial review and applied for bail. He was refused bail on several occasions. On the last occasion bail was refused on the basis that there wasn’t a suitable address to which he could be bailed. The claimant offered an alternative address of a family friend. The friend was spoken to on 23 January 2018. A release referral was drafted, but it was not acted upon until 20 February 2018. The secretary of state conceded that the delay in arranging for the claimant’s release from detention on bail between 24 January and 21 February was unjustified and rendered the detention during that period unlawful. She also conceded that in respect of that period of unlawful detention, the claimant would be entitled to substantial and not merely nominal damages. The secretary of state resisted the contention that the detention was unlawful at any time before 24 January 2018. The parties agreed that the assessment of damages due for the period of admitted unlawful detention and the assessment of any substantial damages in respect of any earlier period of detention that was found to be unlawful should be carried out by a judge in the County Court to which the claim could be transferred in the event that the parties could not agree a sum.

The claimant submitted that his detention from 19 August 2016 to 24 February 2018 was unlawful because of a wrongly issued s.94B certificate.

HELD: Effect of s.94B certificate – The court’s task was to decide whether, at any earlier time before 24 January, the detention became unlawful. The secretary of state could not argue in light of the clarification given in Byndloss, that the s.94B certificate in the claimant’s case was lawfully given in December 2014, Byndloss applied. It did not follow that that remained the position after 9 November 2016 when the case was certified under s.94. From then on the ingredient of an arguable appeal was lacking and in the circumstances the certificate under s.94B remaining in place was not unlawful. The proper analysis was that the s.94 certificate impliedly cancelled the December 2014 certificate under s.94B. Either way, the claimant was then liable to be removed from the UK before his statutory appeal was instituted and the rejection of the challenge to its lawfulness by the UT on the ground that the secretary of state was entitled to treat his art.8 claim as clearly unfounded meant that the restrictions on the exercise of the power to grant a certificate under s.94B identified in Byndloss were not in play. The most that the claimant was entitled to was a finding that between 19 August and 9 November 2016 there was in place a certificate purportedly given under s.94B that should not have been given (see para.58 of judgment).

Conclusion – The claim failed except in the respect conceded by the secretary of state. It would be transferred to the County Court for the assessment of damages for the period of detention between 24 January and 21 February 2018 (para.104).

Application refused

Counsel:
For the claimant: Becket Bedford, Tiki Emezie
For the defendant: Emily Wilsdon

Solicitors:
For the claimant: Dylan Conrad Kreolle
For the defendant: Government Legal Department

LTL 13/4/2018

AWUKU (2) N (3) MURUGESAPILLAI (4) HAMID) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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Solicitors:
For the first claimant: Jesuis 
For the second claimant: Dylan Conrad Kreolle 
For the third claimant: S Satha & Co 
For the fourth claimant: MQ Hassan 
For the defendant: Treasury Solicitor

Counsel:
For the first claimant: Non-counsel representative 
For the second claimant: Non-counsel representative 
For the third claimant: Non-counsel representative 
For the fourth claimant: Non-counsel representative 
For the defendant: M McGahey

R (on the application of (1) AWUKU (2) N (3) MURUGESAPILLAI (4) HAMID) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2012)
[2012] EWHC 3298 (Admin)

DC (Sir John Thomas PQBD, Cranston J) 16/11/2012

IMMIGRATION – LEGAL PROFESSION – CIVIL PROCEDURE

DISCLOSURE : EX PARTE APPLICATIONS : IMMIGRATION DECISIONS : LAW FIRMS : OVERSTAYERS : RELIEF : REMOVAL DIRECTIONS : URGENT APPLICATIONS : NON-COMPLIANCE WITH DISCLOSURE RULES AND PROCEDURAL REQUIREMENTS OF URGENT APPLICATIONS FOR EX PARTE RELIEF : DUTIES OF LEGAL REPRESENTATIVES
The court emphasised the disclosure duties of legal representatives when making urgent applications for ex parte relief in respect of removal directions, and the consequences for solicitors’ firms and legal representatives of non-compliance with the procedural requirements of such applications to the Administrative Court.
When considering conjoined applications for judicial review of decisions by the defendant secretary of state to issue removal directions in respect of the claimants, the court reiterated the disclosure duties of legal representatives when making urgent applications for ex parte relief.

In R. (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), the court gave guidance regarding the very high duty of disclosure and the consequences for solicitors’ firms and legal representatives of non-compliance with the procedural requirements of urgent applications to the Administrative Court seeking deferral of removal directions. Further inquiries were to be made in respect of one of the instant applications; the remaining three applications involved serious breaches of disclosure rules and failures to comply with the rules of court.

HELD: The highest obligations of disclosure rested on an advocate or other officer of the court when making an application to the court for ex parte relief. The court relied on those in the legal profession for the performance of that obligation in entertaining such applications. It had to be appreciated that it was absolutely essential that all the points which told against the grant of relief were put on the face of the submission: that was the absolute duty of the solicitor or counsel. Had the true points against the grant of an injunction staying removal been included in the instant cases, no applications would have been made as it would have been obvious to the author of the document that the court would not entertain such an application. It was deeply regrettable that there had been such grave failures to disclose. It was a long-standing failure in the instant kind of work. Although there had not been a strict adherence to the requirements of the court and a long-standing principle of the law, no further action would be taken in respect of the instant applications. However, in the absence of strong mitigating circumstances, it would be the last time the court would not refer individuals to the Solicitors Regulation Authority for such a breach of those very high duties to the court.

Applications refused

Counsel:
For the first claimant: Non-counsel representative
For the second claimant: Non-counsel representative
For the third claimant: Non-counsel representative
For the fourth claimant: Non-counsel representative
For the defendant: M McGahey

Solicitors:
For the first claimant: Jesuis
For the second claimant: Dylan Conrad Kreolle
For the third claimant: S Satha & Co
For the fourth claimant: MQ Hassan
For the defendant: Treasury Solicitor

OBIH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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Solicitors:
For the claimant: Dylan Conrad Kreolle 
For the defendant: In-house solicitor

Counsel:
For the claimant: M Biggs 
For the defendant: A Byass

R (on the application of OBIH) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2016)

QBD (Admin) (Elisabeth Laing J) 15/04/2016

IMMIGRATION

DETENTION PENDING DEPORTATION : INTERIM RELIEF : LAWFULNESS OF DETENTION

It was not appropriate to release a claimant from immigration detention pending his removal to Nigeria where the evidence was that, despite the claimant’s lack of cooperation, travel documents could be obtained within one or two months, and there was a serious risk that if released he would abscond and/or reoffend.

The claimant applied for interim relief, namely his release from immigration detention.

The claimant Nigerian national had been serving a two-and-a-half year prison sentence. In January 2016, when he was due to be released, the defendant secretary of state detained him under a deportation order. The claimant challenged the deportation order in the Upper Tribunal, who dismissed his judicial review, certifying it as totally without merit. The claimant sought to appeal that decision to the Court of Appeal.

The claimant submitted that his detention breached Hardial Singh principles on the basis that his removal was not imminent because his application for permission to appeal was pending, and because he had not exhausted all of his appeal rights.

HELD: The question was whether, taking into account the fact that the secretary of state had not yet had time to put in her grounds of defence, there were compelling grounds for thinking that the claimant’s detention was unlawful. The secretary of state had made efforts to obtain travel documents, but a telephone interview had to be cancelled due to the claimant’s lack of cooperation. The secretary of state would not remove the claimant while he had an outstanding right of appeal, but given that the judicial review had been certified as entirely without merit, it was very unlikely to succeed. During his monthly detention reviews, the secretary of state considered that he could be removed within a reasonable time, and that travel documents could be obtained within one or two months. Further, the secretary of state had found that there was a serious risk that the claimant would abscond and/or reoffend. Considering his previous offending history and the fact that he had been sentenced to imprisonment for two-and-a half years, it could not be said that that finding was irrational, R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 followed.

Application refused

LTL 15/4/2016 EXTEMPORE

YADLY MARKETING CO LTD v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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Solicitors:
For the appellant: Dylan Conrad Kreolle 
For the respondent: Government Legal Department

Counsel:
For the appellant: Arfan Khan, Tiki Emezie (Solicitor Advocate) 
For the respondent: James Chegwidden

YADLY MARKETING CO LTD v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2016)

[2016] EWCA Civ 1143

CA (Civ Div) (Arden LJ, Beatson LJ, Henderson LJ) 23/11/2016

CIVIL PROCEDURE – IMMIGRATION

APPEAL NOTICES : APPEALS : DELIVERY : EXTENSIONS OF TIME : IMMIGRATION POLICY : LIMITATION PERIODS : MISTAKE : OBJECTIONS : PENALTIES : PUBLIC HOLIDAYS : REQUIREMENT FOR NOTICE OF APPEAL TO BE DELIVERED TO COURT OFFICE, NOT JUST POSTED THROUGH LETTERBOX OF COURT BUILDING : WHETHER APPROPRIATE TO EXTEND TIME WHERE OFFICE CLOSED ON LAST DAY OF LIMITATION PERIOD : IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006 s.15, s.16, s.17(4), s.17(6), s.5, s.15(3), s.16(1), s.16(2), s.16(4), s.16(4)(b), s.16(5)(c), s.16(5)(d), s.17, s.17(4)(b), s.19

A statutory limitation period for bringing an appeal such as that in the Immigration, Asylum and Nationality Act 2006 s.17(4) required delivery of the notice of appeal to the relevant court office, not merely posting it through the letterbox of the court building. That was not possible where the office was closed for the entire last day of the stated limitation period, so the appeal could be filed on the next working day.

The appellant appealed against a decision to strike out as out of time its notice of appeal against a civil penalty.

In March 2014 the secretary of state had issued a civil penalty notice, alleging that the appellant had employed workers whose immigration status did not permit them to be employed, contrary to the Immigration, Asylum and Nationality Act 2006 s.15. The appellant objected pursuant to s.16 and in response the secretary of state issued an amended notice, reducing the penalty. The notice stated the 28-day limit for bringing an appeal provided for in s.17(4) would end on 26 May 2014. That was a bank holiday, when the court offices were closed. The appellant made further representations in a letter of 21 May. On 27 May, it attempted to issue an appeal at its local county court, as s.17(6) provided. The court refused to accept the appeal on the mistaken basis that it should have been issued at an immigration tribunal. It again refused to accept the appeal the next day. The appellant posted the papers to another county court, where the appeal was lodged on 30 May. A judge struck out the appeal on the basis that the last day for filing it had been 26 May and there were no exceptional circumstances justifying an extension of time.

The appellant argued that the judge had erred in holding that the last day was 26 May: cases such as Kaur v S Russell & Sons Ltd [1973] Q.B. 336 and Mucelli v Albania [2009] UKHL 2 showed that where there was a statutory limit and the appeal could not be filed on what appeared to be the last day because the court was closed, Parliament must have intended that the appeal could be filed on the next working day. It also argued that time should have been extended, and that its 21 May letter was a second objection under s.16, which had the effect of extending time to appeal.

The secretary of state argued that it had been open to the appellant to file the notice on 26 May by posting it through the letterbox or sliding it under the door.

HELD: (1) Last day for filing: The effect of the secretary of state’s submission would either cut down the statutory limitation period or require appellants to take unusual steps on days when the court office was closed to secure the full benefit of the period. It did not follow from Van Aken v Camden LBC [2002] EWCA Civ 1724 that, where court offices were closed on the last day of the period, a person should be required to find a court building where it was possible to put the document through the letterbox or under the door, Van Aken considered. Encouraging or requiring such methods would produce uncertainty, there would be numerous practical difficulties, and it would risk the documents being mislaid, with all the difficulties of proof that would then confront the litigant. Parliament would not have intended an approach to depend on whether there was a means of getting a document into a particular court building when it was closed. There was a distinction between the court office and the court building: there was a difference between leaving documents in a drop box in the office, within the curtilage of the office and under the supervision of the appropriate staff, and methods such as putting the document through the letterbox. The Kaur approach only applied where the office was closed during the whole of the last day, Mucelli, Kaur and Aadan v Brent LBC [2000] C.P. Rep. 17 applied. What was required was delivery of the document to the court office itself, which was not possible where the office was closed for the entire last day of the limitation period. There was nothing in the particular context of s.17 to suggest that that general approach should not apply. The judge had erred in concluding that the period ended on the bank holiday (see paras 31-36 of judgment).

(2) Extension of time: The appellant had been entitled to file the notice the day after the bank holiday. It had thus attempted to file it at the county court within the time limit. It had done all it could within the time limit. The reason for its failure to do so was the error of the court official, not any failing on its part. The person affected could not be regarded as at fault because he had not filed the notice before the expiry of the number of days specified in the statute in such circumstances, Kaur applied. In the particular circumstances, the decision to use the post on the following day, rather than filing the notice personally, did not take the case outside the extremely narrow scope for departure from the statutory limit. The appellant had done all it could to issue the appeal in time, and the court’s error constituted exceptional circumstances justifying an extension of time (paras 39-41).

(3) Second objection (Obiter) The court was inclined to the view that it was not possible to raise a second objection under s.16. Objectors would be sufficiently protected by having the right to appeal against a second penalty notice (paras 42-43).

Appeal allowed

Counsel:
For the appellant: Arfan Khan, Tiki Emezie (Solicitor Advocate)
For the respondent: James Chegwidden

Solicitors:
For the appellant: Dylan Conrad Kreolle
For the respondent: Government Legal Department

LTL 23/11/2016 : [2017] CP Rep 12 : [2017] 1 WLR 1041 : [2017] Imm AR 701

ADEMILUYI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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Solicitors:
For the claimant: Dylan Conrad Kreolle 
For the defendant: Government Legal Department

Counsel:
For the claimant: Tiki Emezie (Solicitor Advocate) 
For the defendant: Jacqueline Lean

R (on the application of ADEMILUYI) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2017)

[2017] EWHC 935 (Admin)

QBD (Admin) (Michael Fordham QC) 20/01/2017

IMMIGRATION – CIVIL PROCEDURE – CPR

CPR : DETENTION PENDING DEPORTATION : FOREIGN CRIMINALS : PERMISSION TO DEFEND : REASONABLE TIME : REMOVAL : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8 : UK BORDERS ACT 2007 s.36, s.32(5), s.33, s.36(1) : CIVIL PROCEDURE RULES 1998 r.54.8, r.54.14, r.54.9(1)(b), r.54.9(2)

The third principle derived from R. v Governor of Durham Prison Ex p. Singh [1984] 1 W.L.R. 704 and encapsulated in R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12, that immigration detention pending deportation would be unlawful where removal could not be effected within a reasonable period, had to be considered prospectively by the Secretary of State for the Home Department from the outset of an individual’s detention.

The claimant foreign criminal applied for judicial review of the defendant secretary of state’s decision to hold him in immigration detention from 26 October 2015 to 18 March 2016.

The claimant had been imprisoned for three offences: possession and use of a forged UK passport, entering into a sham marriage to avoid immigration control for his purported spouse, and bigamy. Prior to his imprisonment, he had lived with his wife and their five children, aged between 2 and 10, at least some of whom had British citizenship. In June 2015, the secretary of state informed him that he was liable to be deported as a foreign criminal, and the claimant notified the secretary of state that he would be appealing against a deportation order as contrary to ECHR art.8. When the claimant’s custodial sentence ended in October 2015, the secretary of state declined to release him on bail because of the risk of him absconding or committing further offences, and maintained his detention pending deportation under the UK Borders Act 2007 s.36. A notice of deportation was issued in November 2015, and his detention was reviewed and continued. He was released on bail in March 2016 after permission to bring the instant claim was granted.

The claimant contended that the secretary of state, having breached CPR r.54.8 and r.54.14 by failing to acknowledge service of the claim and serve detailed grounds of defence in the specified time, should not be allowed to defend the claim, thereby raising the prospect of summary judgment in his favour. He submitted that his detention had been unlawful from the outset according to the third of the four principles established by R. v Governor of Durham Prison Ex p. Singh [1984] 1 W.L.R. 704 and encapsulated in R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12, namely that it had always been clear that the secretary of state would not be able to effect his deportation within a reasonable period. The secretary of state argued that there had been no breach of the third Hardial Singh principle because the claimant’s immigration detention had only just begun, the risk of his absconding and re-offending effectively lengthened the reasonable period in which his deportation should be effected, and that deportation could be achieved quickly as the claimant already had a passport.

HELD: (1) Summary judgment was not a tenable proposition. The judicial review court was the guardian of the public interest in public law cases, and it would not be appropriate for the legality of detention to be decided by default without reference to the legal and factual merits. Whilst the cumulative effect of CPR r.54.8, r.54.9(1)(b) and r.54.14 was that the secretary of state was not entitled to take part in the judicial review claim and might be precluded from defending it, it did not follow that she had to be precluded: the court could grant her permission. In the instant case, it was in the interests of justice and in the public interest for the court to grant permission, so as to have the secretary of state’s assistance in dealing with the evidence and addressing the lawfulness of detention. The court’s disapproval of her record of defaults could be reflected in the consequent costs order pursuant to CPR r.54.9(2).

(2) The third Hardial Singh principle required consideration to be given prospectively as to whether deportation could be realized within the appropriate reasonable period, Hardial Singh applied, Lumba followed. It was intended to introduce a yardstick for application by the court but also a disciplined framework for the secretary of state as decision maker. She had to ask herself that question from the outset of detention, and the fact that an individual’s detention had only just begun did not answer it. The factors relevant to the question of what the reasonable time in which to effect removal would be included the length of the period of detention, the nature of the obstacles to deportation, the secretary of state’s diligence, speed and effectiveness in surmounting those obstacles, the conditions of detention and its effect on the detainee and his family, the risk of absconding, and the risk of further offending, Lumba followed. The claimant’s detention was not compatible with the third Hardial Singh principle. It should have been apparent to the secretary of state that he could not be removed within a reasonable period of time given his role in a family unit containing children who were British citizens. Deportation could clearly be resisted on the basis of art.8, and an appeal on that ground could not properly be characterized as unmeritorious. Ultimately, the secretary of state had justified her decision to detain the claimant because of his risk of absconding or re-offending, and while such risks would affect the length of the reasonable period for detention, they could not be regarded as a trump card, Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 followed, R. (on the application of Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) applied. The claimant’s detention had been unlawful from 26 October 2015, and he was entitled to damages.

Application granted

Counsel:
For the claimant: Tiki Emezie (Solicitor Advocate)
For the defendant: Jacqueline Lean

Solicitors:
For the claimant: Dylan Conrad Kreolle
For the defendant: Government Legal Department

LTL 23/1/2017 EXTEMPORE

NDUBUISI CALLISTUS NWANKWO v SECRETARY OF STATE FOR THE HOME DEPARTMENT : CHARLES ANYAMENE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Posted by Victor on with 14,466 Comments

Solicitors:
For the first applicant : Dylan Conrad Kreolle 
For the second applicant: Dylan Conrad Kreolle 
For the respondent: Government Legal Department

Counsel:
For the first applicant : Arfan Khan 
For the second applicant: Tiki Emezie (Solicitor Advocate) 
For the respondent: Sian Reeves

NDUBUISI CALLISTUS NWANKWO v SECRETARY OF STATE FOR THE HOME DEPARTMENT : CHARLES ANYAMENE v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2018)

[2018] EWCA Civ 5

CA (Civ Div) (Peter Jackson LJ, Singh LJ) 12/01/2018

ADMINISTRATION OF JUSTICE – CIVIL PROCEDURE – COSTS

COSTS ORDERS : PERMISSION TO APPEAL : UPPER TRIBUNAL

In judicial review claims heard by the Upper Tribunal exercising its original jurisdiction rather than on appeal from the First-tier Tribunal, the test for an appeal to the Court of Appeal was the first appeal test, not the second appeal test.

HELD: Applications refused

Counsel:
For the first applicant : Arfan Khan
For the second applicant: Tiki Emezie (Solicitor Advocate)
For the respondent: Sian Reeves

Solicitors:
For the first applicant : Dylan Conrad Kreolle
For the second applicant: Dylan Conrad Kreolle
For the respondent: Government Legal Department

LTL 12/1/2018 : Times, February 6, 2018

SHOTE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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Solicitors:
For the claimant: Dylan Conrad Kreolle 
For the defendant: Government Legal Department

Counsel:
For the claimant: Shaheen Haji, Tiki Emezie (Solicitor-Advocate) 
For the defendant: Jennifer Thelen

R (on the application of SHOTE) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2018)

[2018] EWHC 87 (Admin)

QBD (Admin) (Michael Fordham QC) 23/01/2018

IMMIGRATION

BAIL : DETENTION PENDING DEPORTATION : LAWFULNESS OF DETENTION : NOTIFICATION : OVERSTAYERS : PENDING APPEALS : REASONABLE TIME : REMOVAL : RESIDENCE PERMITS : PROSPECTS OF DEPORTATION WITHIN REASONABLE TIME

An immigrant’s pending appeal against the refusal of an EEA residence card, and the fact that she had not breached the conditions of bail granted by the First-tier Tribunal, did not mean that there had been no prospect of deporting her within a reasonable time following her detention pending deportation. The 33 days that she had been detained pending deportation had not been unlawful.

The claimant Nigerian national applied for judicial review of the defendant secretary of state’s decision to detain her for 33 days pending deportation.

The claimant, who was born in Nigeria to a Finnish mother, had come to the UK in 2005 on a visitor visa. She overstayed and was later refused leave to remain. In May 2016 she was detained pending deportation. She was granted bail by the First-tier Tribunal, which was varied to chief immigration officer’s bail. Her application for a residence card under the Immigration (European Economic Area) Regulations 2016 as the dependent family member of an EEA national, her Finnish mother, was rejected and she appealed. She was sent a notice that a new three-month window for her removal commenced in March 2017. On 30 March 2017, when she attended the immigration reporting centre in accordance with the terms of her bail, she was detained and told of her removal that evening. She obtained an interim stay of her removal and issued human rights and judicial review claims. She was released on bail on 2 May 2017.

The claimant submitted that her detention was unlawful because it was not apparent that the secretary of state was able to deport her within a reasonable period because: she had a pending appeal under the 2016 Regulations; she was not a person who required leave to enter or remain but did not have it, because objectively she was able to show eligibility under the 2016 Regulations, and could therefore not be removed under the Immigration and Asylum Act 1999 s.10(1); the tribunal bail had remained extant and she was not in breach of its terms; there were procedural obstacles to her removal; and the removal notification had not been seen by her.

HELD: Pending appeal under 2016 Regulations – The claimant could not bring herself within the carefully designed protections in the 2016 Regulations. The fact that she was not required by reg.37 to appeal only from abroad did not mean that she was entitled, on having commenced an appeal in the UK, not to be removed, R. (on the application of Ahmed) v Secretary of State for the Home Department [2016] EWCA Civ 303 applied. Nor was a decision concerning a person’s entitlement to be issued with a residence card a species of EEA decision covered by reg.40(2) and (3) which provided that removal directions had no effect pending the appeal, Ahmed applied (see paras 14-18 of judgment).

Removal under the Immigration and Asylum Act 1999 s.10(1) – A person who wished to contest a conclusion that they were not eligible under the 2016 Regulations had statutory appeal rights; removal could not prospectively be challenged on judicial review by determining the merits of that eligibility, Ahmed applied. Hence, a person who claimed eligibility under the 2016 Regulations, and whose claim had been rejected by the secretary of state but was appealable, was a person who required and did not have leave to enter or remain who could be removed under s.10(1) (paras 22-28).

Bail – The tribunal grant of bail ended when the claimant expressly became the subject of chief immigration officer bail. Public law implications of an original tribunal grant of bail could in principle endure, notwithstanding subsequent surrenders of bail to an immigration officer, where bail continued as before and there was no change in circumstances, R. (on the application of AR (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 807 followed. However, in the instant case, by 30 March 2017, when the claimant surrendered to her bail, there was a material change in circumstances in that the secretary of state was intending removal shortly thereafter. Immigration detention, imposed in such circumstances following a surrender to bail at a properly notified date for appearance, was not unlawful, S v Secretary of State for the Home Department [2006] EWHC 228 (Admin) applied (paras 34-35, 39-41).

Procedural obstacles – The interim stay simply prevented the claimant’s removal on 30 March 2017; the human rights claim was considered and responded to promptly; and the judicial review proceedings were dealt with expeditiously. The secretary of state conducted three detention reviews where she considered the legitimacy of the claimant’s detention, including any obstacles to her prompt removal. At no stage was it apparent that removal within a reasonable period was not possible (paras 44, 47).

Removal notification – It was sufficient under Home Office policy if notification of the removal window was provided to the claimant or her solicitors and there was no reason to doubt that she had received that notice (para.51).

Application refused

Counsel:
For the claimant: Shaheen Haji, Tiki Emezie (Solicitor-Advocate)
For the defendant: Jennifer Thelen

Solicitors:
For the claimant: Dylan Conrad Kreolle
For the defendant: Government Legal Department

LTL 23/1/2018 : [2018] 4 WLR 36