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

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

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