SHOTE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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