Monday 15 March 2010
MRS JUSTICE DOBBS:
- This is a case in which the claimant, a 30 year old national of Guinea, seeks to challenge the lawfulness of his detention by the defendant pending his removal from this country to Guinea.
- The claimant has been in administrative detention now for 30 months. The basis of the claim submitted by the claimant is that the defendant had not satisfied the burden of justifying the detention based on the principles to be found in Regina v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as developed by case law thereafter, and in particular that the defendant had failed to show that there was any sufficient prospect of the claimant being deported within a reasonable period of time. It was also argued that the period of detention was such, that in any event, the claimant should be released, because the factors militating against release were not sufficiently strong to justify detention, as the defendant sought to do. The reasons put forward for detention are: the risk of absconding (the defendant suggests that the claimant is a major risk of absconding), the risk of further convictions, and the fact that the claimant had brought his detention on himself by failing to co-operate with the authorities and, inter alia, failing to accept the offer of facilitated removal.
- At the beginning of the hearing, I informed the parties that a note was received by this court on Saturday from counsel for the defendant answering some (but only a few) of the questions that were raised in the pre-protocol letter of 30 September 2009, followed up by many chasing letters by the claimant's solicitor of the defendant, and also followed by a telephone call to counsel's clerk on Thursday by my clerk, indicating that the court would want to know the up-to-date position. It transpires that the Guinean Embassy is presently willing only to provide documents for those who wish to return voluntarily. There is a hope and an intention that an understanding with the Embassy can be reached in relation to those enforced removals, but counsel has no evidence to this effect and had no evidence to sustain the assertion in the papers that the Foreign and Commonwealth Office were in negotiations with the Embassy. There were other matters that this court drew to counsel's attention which caused the court concern. They related to the accuracy of the assertions made in the various detention reviews, monthly progress reports, and bail applications to the AIT, one of which was the assertion that the claimant did not come to the Home Office's attention between 27 March 2006, when he first gave himself up to the authorities, until October 2006, when he was arrested for an offence. The record clearly shows, and the probation officer confirmed with the relevant officer at Gloucester Police Station, that the claimant had reported regularly, although the record shows that on two occasions a document was issued for his failure to report. The impression given, however, was contrary to the actualities. In the recent review, he also referred to the claimant for the first time in January 2010 giving a different story about when he came into the country and how he came into the country, when it is quite clear on a close analysis of the documents that on 16 July 2008 when he was interviewed, he told the Home Office when he had come into the country and the method of how he had entered. This was a further inaccuracy which the defendant has had to accept.
- There were other matters that I put to counsel. I said that I required evidence to back up assertions to be found in the records. However, counsel is unable to provide such evidence. Other problems relate to the assertion that the claimant was considered a high risk of harm to the public, when the pre-sentence report assessed him as a medium risk of harm to the public. It was also asserted that he was at a high risk of re-offending when the pre-sentence report had assessed him as a low risk of offending. These and other matters have caused the court some concern. When the court raised the concerns, Mr Waite properly agreed to take instructions. An hour was allowed for that. Mr Waite's instructions are that the claimant's detention is currently being considered. Although he is therefore not in a position to agree to a consent order being made, he has said that he is not in a position to oppose the claim that has been made, the burden being on the defendant to justify detention.
- It follows, therefore, that the court does not need to go into the details of the background of this case and/or the legal arguments. The short summary I have given should suffice to give the flavour of it. It follows, therefore, that an order will be made for the release of the claimant. Mr Goodman will draft the conditions that will be attached to the document, which I shall consider after lunch.
- The future progress of this case has been considered because the issue that Mr Goodman wishes determined is as to the legality of the detention and when the detention was legal. There is currently a case before the Court of Appeal which will deal with a policy of the defendant's which it is submitted, and has been submitted in the grounds of the claim, to be an unlawful policy. It forms part of the argument in this case. It is therefore agreed that the case should be stayed in relation to this aspect. The detention issue is the primary aim of the application today. That should be heard once the case currently in the Court of Appeal has been determined.
- I have indicated that the case will not be reserved exclusively to me because it may be that when it is ready for hearing I will not be available to hear it. It is not right that it should be delayed because of that. However, the Administrative Court will have in mind that if I am available when it is ready for hearing, then obviously having read the papers that I have, it is desirable that I deal with the case. But it is not to be marked to be reserved only to myself.
- There is an application for costs. Mr Waite cannot oppose that application. However, Mr Goodman seeks costs on an indemnity basis. I shall therefore adjourn this case until 3.00pm for Mr Goodman to produce a skeleton argument in support of his application.
MR WAITE: My Lady, can I just mention the matter of the stay?
MRS JUSTICE DOBBS: Yes.
MR WAITE: I do not think you have heard from me in relation to that. The claimant has been unsuccessful in the Court of Appeal in WL.
MR GOODMAN: The position, my Lady, is that there is a determination by the Court of Appeal. It sets out the approach to any damages award. I do not accept that it was unsuccessful. It sets out what must be proved by a claimant. However, that itself is under appeal to the Supreme Court.
MRS JUSTICE DOBBS: Yes. There you are, that is what I understood, that it was going to the Supreme Court in any event.
MR WAITE: No, they have not granted leave. The appellants in that case were unsuccessful. I did not wish to give the impression that there was any agreement to a stay in circumstances where leave has not been obtained in that case.
MRS JUSTICE DOBBS: Well, if leave is not obtained, then you can get on with it.
MR WAITE: Yes. In my submission, your Ladyship should proceed to give directions.
MR GOODMAN: My Lady, the outstanding matter -- I have no objection to it proceeding on the Court of Appeal's judgment, but if it does go to the Supreme Court, then in that event a further stay may be appropriate. The outstanding matter is the question of the application notice, an answer to our Part 18 request and the request in the pre-action protocol letter --
MRS JUSTICE DOBBS: Yes, what have you had and what have you not had?
MR GOODMAN: My Lady, we have not had an answer to any of the pre-action questions, save that --
MRS JUSTICE DOBBS: You have had some in court.
MR GOODMAN: We have had the answer that there have not been any removals --
MRS JUSTICE DOBBS: Well, there have not been any removals, so that is one of the answers.
MR GOODMAN: My Lady, the application notice is at page 21, as I recall.
MRS JUSTICE DOBBS: That was in order to clarify the defendant's basis of detaining your client. Your client is detained now, but I have already indicated earlier that the stay would give the defendant an opportunity to get together the necessary information and documentation in order to show what the actual position was at what stage, with whom negotiations that were carried had been conducted, so that one can see the full picture as to what efforts were being made by the defendant.
MR GOODMAN: Yes. It may be that the precise form in which the matters in our pre-action letter are answered -- the pre-action letter is the 26th --
MRS JUSTICE DOBBS: I have seen that. It may be that the precise form is not necessarily the best way of dealing with it --
MR GOODMAN: Indeed.
MRS JUSTICE DOBBS: -- and therefore it seems to me, rather than making an order, directions will be made and I can add to the directions that the defendant, as I invited them previously, to provide all the relevant information to deal with the issues in relation to his detention because, as Mr Waite has already conceded, he did not have evidence to sustain certain aspects and indeed right at the beginning he said that the evidence was available in relation to the particular form that I raised and this would allow the opportunity for them to obtain it. So I am not sure that an order in the strict terms of the pre-action letter is necessarily the most helpful order.
MR GOODMAN: I accept that, my Lady. Perhaps the only matter would be to impose a timetable for that response.
MRS JUSTICE DOBBS: Yes.
MR GOODMAN: A generous one is perfectly acceptable to the claimant.
MRS JUSTICE DOBBS: Yes. Mr Waite, there are quite a few issues that need looking at. As I said at the start, there is absolutely nothing in the documentation to show any communications with the Embassy from 4 November 2008. That is a huge gap. Also in the light of that very odd letter that has been drawn to your attention, I would want to know why it took five months from the date of the language analysis, which was 9 October -- or was it 19 October -- 2009, that it took whatever it is, five months, until 3 March of this year, when this hearing was already fixed, for the Secretary of State to forward that language analysis to the unit to which they forward it. We do not even have evidence that the language analysis has even reached the Embassy yet. I think you really do need to investigate that letter --
MR WAITE: Yes.
MRS JUSTICE DOBBS: -- because that may be the reason for why that analysis was not forwarded earlier. But you would have expected it to have been forwarded to the Embassy immediately it had been received. It is also not clear, although you have answered it to a certain extent in your letter to the court, what inquiries were made of the Embassy as to the value of the language analysis, whether they would take any notice of it if it was forwarded to them. Those are the sort of things that it seems to me that the court needs to know, and at the moment the defendant's documentation is entirely silent upon them.
MR WAITE: Yes.
MRS JUSTICE DOBBS: Let us talk about timetable. Mr Goodman is obviously in a good mood. He has said that he is willing to give you a generous timetable. Let us give you a generous timetable, but a realistic one. I know we are talking about different departments --
MR WAITE: Yes.
MRS JUSTICE DOBBS: I am conscious of that.
MR WAITE: I would ask for two months.
MRS JUSTICE DOBBS: That does not sound unreasonable, Mr Goodman.
MR GOODMAN: I am happy to agree that.
MRS JUSTICE DOBBS: Mr Goodman, you are going to draw up something anyway, are you not?
MR GOODMAN: Yes, my Lady, a skeleton argument and the order.
MRS JUSTICE DOBBS: The defendant will have two months within which to make disclosure of all relevant documents in connection with the claimant's detention, in particular in relation to the efforts made and the discussions conducted between the Guinea Embassy and the Home Office, whether it be via the FCO or any other body that has been involved.
MR GOODMAN: My Lady, I will send the documents I propose to prepare over the lunchtime via e-mail to your Ladyship's clerk so that your Ladyship can read them in advance.
MRS JUSTICE DOBBS: Thank you very much indeed.
MR WAITE: My Lady, I do not want to labour the issue of bail. I have the further papers and I have the determination, which does not change anything. The claimant apparently agreed before the immigration judge that he failed to report on two occasions.
MRS JUSTICE DOBBS: Yes. You are right, it does not change anything. There is one other matter. I kept on seeing different dates, but the decision letter of 20 October was appealed on 26 October?
MR WAITE: Yes.
MRS JUSTICE DOBBS: When was the actual appeal to the AIT because it kept on changing?
MR GOODMAN: It was on 11 March.
MRS JUSTICE DOBBS: It was on 11 March?
MR GOODMAN: Yes, my Lady.
MRS JUSTICE DOBBS: Has any indication been given as to when --
MR GOODMAN: Judgment has been reserved on that.
MRS JUSTICE DOBBS: But was any indication given as to how long?
MR GOODMAN: I do not think it was. In the ordinary course it takes around two months on average.
MRS JUSTICE DOBBS: It does not usually take that long.
MR WAITE: It is much quicker than that. They have targets to meet.
MRS JUSTICE DOBBS: Yes. I thought they were becoming quicker. I am just thinking how that may affect this case. Say the determination was favourable and the appeal succeeded, what practical effect is that going to have, if any, on this case?
MR GOODMAN: My Lady, perhaps the consequence would be that if it was not then appealed, the appellant would be entitled to a grant of some form of leave to remain, depending on the exact circumstances on which he succeeded, and as such he could not then be liable to detention and could not be under temporary admission and so accordingly conditions of bail --
MRS JUSTICE DOBBS: And the conditions that have been imposed.
MR GOODMAN: Indeed, so they would then need to be modified. The Secretary of State would, we expect, be in a position to do that in those circumstances and they would fall away.
MR WAITE: I do not think it would have the right impact on the claimant whilst in detention.
MRS JUSTICE DOBBS: No, I appreciate that. I was just thinking in terms of the directions I have made, whether that could impact on any of the directions made. As you have said, the bail conditions would fall away in any event. So the court would not need to be troubled about that.
MR GOODMAN: My Lady, what I would propose to do, and what I have done in similar cases to this, is to draw the order up such that the directions your Ladyship has given are not imposed by way of order by the court, but by way of a declaration that it is lawful for the Secretary of State to impose tagging and leave the reporting conditions to his discretion. That then enables the Secretary of State to vary them as appropriate within his powers when circumstances may change.
MRS JUSTICE DOBBS: So the bottom line is that there is no practical effect on what is going on in this case?
MR GOODMAN: No, my Lady.
MRS JUSTICE DOBBS: However, I think it would be useful to add a direction that the claimant's solicitors notify the Administrative Court of the date and the outcome of the AIT hearing because if it is an adverse decision, then it will go through the statutory appeal process, will it not?
MR GOODMAN: In any event it will go through the statutory appeal process.
MRS JUSTICE DOBBS: Yes, and it may well be worth noting -- will it go up to the tribunal now?
MR GOODMAN: I am not sure, my Lady.
MRS JUSTICE DOBBS: It is all changing, is it not?
MR GOODMAN: I am sorry, I do not know.
MRS JUSTICE DOBBS: It might be the Upper Tribunal is the final -- It is all changing, but I think it is useful if the Administrative Court is notified of the outcome of the hearing so that at least the Administrative Court has an idea of what might be the next step in the case. Anything else, otherwise we will come back at 3pm. Anything else?
MR GOODMAN: No, my Lady.
MRS JUSTICE DOBBS: Thank you.
(The court adjourned until 3pm)
(There followed a short discussion on the agreed order
and an application for indemnity costs)
MRS JUSTICE DOBBS:
- There is an application for costs against the defendant. The defendant has conceded that costs should be paid, but resists the claimant's application for costs on the indemnity principle.
- I have considered the authorities set out in CPR 44.4.3 and also the cases referred to by the claimant, namely R(Banks) v Secretary of State for Environment, Food and Rural Affairs [2004] EWHC 1831 (Admin) and Kiam v MGM Limited (No 2) [2002] EWCA Civ 66.
- I bear in mind that costs on the indemnity basis are concerned principally with the losing side's conduct and are normally reserved for those cases where the court wishes to indicate disapproval of a party's conduct. The claimant relies on five headings. He submits that the conduct of the defendant has been unreasonable to a high degree. First, the defendant's response to disclosure throughout the proceedings has been unsatisfactory in that no evidence by way of witness statement has ever been provided to support the various cases advanced. The core issues and the claim have been responded to very late, and only by counsel on instructions. Documents relating to the negotiations with the Guinea Embassy have never been disclosed. Relying on observations of Sullivan J in Banks at paragraph 34, the claimant submits that in this case the process of obtaining the relevant information and documentation has been, and continues to be, "like extracting teeth without an anaesthetic".
- The claimant sets out the fact that the core issue in the claim has been the fact that the claimant's solicitors suspected at an early stage that no removals were continuing to Guinea. In the pre-action protocol correspondence, starting at the end of September 2009, the claimant set out this issue. This was continued during correspondence between October and December 2009, the claimant pursuing the defendant for a response to the series of questions set out in the pre-action letter. The Grounds of Claim also set out these issues, as does the letter of 10 March 2010, to which there was no proper response from the defendant on 11 March. The defendant ignored the request for a response. It is pointed out that it was not until after hours on Friday that counsel for the defendant served a note to the court which dealt with some of the issues, but with no accompanying evidence. It is submitted that the duty of the defendant is to enjoy a partnership with the courts based on a common aim, namely the maintenance of the highest standards of public administration and that it has failed to fulfil that role of partner to the court. It is submitted that both the AIT and the High Court have been misled as to the true factual background, that the detention of the claimant has been prolonged unnecessarily, and that he has been deprived of an effective opportunity to challenge his detention before the courts at an earlier time.
- The second heading is that the defendant has presented a series of defences, each different, inaccurate and unsupported by witness evidence. An example is set out from the summary grounds of defence where the defendant asserted that the claimant's details are being provided to the Guinean authorities and a response is awaited. There is also an excuse as to why the claimant's language analysis test was not forward to the Guinean authorities at a much earlier stage. It goes on to state:
"At the present time the Secretary of State is in contact with the Guinean authorities in order to progress the application."
It would appear from the lack of evidence that the position as stated in the summary grounds of defence is misleading because there is no evidence that the applications have been processed. Indeed, the evidence tends to the contrary. Nor is there any evidence to show that any contact with the Guinean authorities has taken place.
- The third ground is that the detailed grounds of defence presented what has now been accepted as a misleading picture. The defendant's main point, made repeatedly in those grounds and mentioned in the latest detention review, was that the claimant had recently changed his account about when he entered the United Kingdom and thus his purported attempts to co-operate with the removals process since 2007 have been nothing but a pretence.
- In a note served on Friday night, counsel for the defendant accepts that this is wrong. It was said to be a regrettable mistake approved by the Secretary of State; it was made in the absence of adequate documentation provided to counsel when he was preparing the detailed grounds of defence. It is submitted that the errors based on the accounts found in the defendant's monthly progress reports and detention reviews were repeated in the detailed grounds of defence. It is further noted by the claimant that the defendant's stance in relation to the risk of re-offending is in stark contrast with the pre-sentence report, with the report of Dr Basu and with the judge's observations when he passed sentence.
- The fourth heading is that the defendant opposed the claimant's application up to the date of hearing and only changed position in the middle of the hearing, stating that it would not oppose the claim. The note received on Friday night indicated that further instructions were being taken as to whether the release of the claimant was resisted. Defence counsel was asked by the court what the position was in relation to the instructions that had been taken. He informed the court that the claim was to be opposed. The court then asked the defendant a series of questions based on some concern on the part of the court in relation to documentation seen and also in relation to lack of evidence. Thereafter the defendant said that it proposed no longer to oppose the claim.
- The fifth heading is procedural non-compliance. It is pointed out that the specific provisions of the CPR have been infringed: failure to responde to the pre-action protocol letter within six months or at all; and failure to file the detailed ground of defence within 35 days of the date of the order of Mitting J. The court adds one more: failure to comply with the order of Owen J of 18 December that the acknowledgement of service should be filed by 4 January 2010. It was filed nine days later.
- On behalf of the defendant, Mr Waite submits, first of all, that, whilst accepting that there has been no evidence in front of the court in particular in relation to the "Mitting J questions and the reasonable prospect of removal", it is not necessarily the fact that the evidence does not exist; that there has been no deliberate decision by the Secretary of State not to disclose material and information to the court and to the claimant; and that the defendant has not pursued a hopeless case, but has listened to the court's concerns and did not waste a day of court time in argument. In any event, the justification for continuing the case made by counsel at the beginning of the hearing this morning was that, despite not being able to answer the "Mitting J questions", in light of paragraphs 54 and 55 of the case of A, the defendant had an arguable case. However, the defendant was not in a position to oppose the claim whilst actively reconsidering the issue of detention. Mr Waite submits that if the court finds that the defendant has been dilatory, that is insufficient to take the case out of the normal range of cases where the conventional order is appropriate.
- The defendant has not dealt with any of the other complaints made in the skeleton argument of the claimant.
- As has already been pointed out, the order releasing the claimant was made because the defendant was not in a position to oppose the claim because, inter alia, of the lack of evidence, the burden of proof being on the defendant to justify detention.
- Despite the pre-protocol letter of 30 September from the claimant which set out the law and asked the defendant a series of questions, despite the various chasing letter by the claimant's solicitors before judicial review proceedings were eventually started at the end of December, despite the judicial review proceedings, and despite the further letters to the defendant reiterating the requests and the part of claim which asked for disclosure, there has been late and partial disclosure by the defendant right up to Friday evening. There clearly has not been full disclosure because, as Mr Waite has already said, it may well be that the evidence exists in this case.
- It must be noted that, so concerned was this court on receiving the case papers, that my clerk contacted the clerk to counsel for the defendant to indicate that the court expected the defendant to be able to explain the current position.
23. As for the response to the questions posed by the claimant's lawyers, it is to be noted that, save for one or two acknowledgements of receipts of the letters over the last six months, there has been no substantive reply. Notably, there is no substantive reply or reference made in the summary or detailed grounds of resistance to the questions posed.
- It is also clear from the detailed grounds of resistance that no steps have been taken to obtain a statement of evidence dealing with the history of the case and answering the essential questions which must be answered before consideration could be given to the defendant's grounds for detention.
- The answer to the prospect of removal in a reasonable time (although the exact date may not be known) would help inform the grounds advanced by the defendant for detention.
- There has been limited response this morning in court through counsel. The court was told that currently it is correct to say that there had not been no removals to Guinea since 2006; and that the Embassy would only be prepared to grant emergency travel documents to whose willing to return. There is no documentation provided in support of the instructions given to counsel.
- So far as the language analysis is concerned, it is not thought that it will make any difference to the granting of the emergency travel documents on the information currently made available.
- It is hoped to agree a memorandum of understanding of the Embassy to enable forced removal. Again, there is no documentation to support this instruction.
- It is not known whether such a memorandum of understanding will be agreed and, if so, what sort of timetable would ensue. In other words, there is no evidence in front of this court of any prospect of the claimant being removed within a reasonable period of time. This is despite the letter before action setting out the burden on the defendant and the need for evidence to satisfy the test, and despite the frequent chasers and reminders.
- Nothing could have been clearer to the defendant as to the need for evidence and the burden of proof on the defendant. Despite this, the defendant has produced documentation and records in this case which show that the defendant has maintained its stance on the basis of inaccurate assertions and interpretation of the evidence and relying heavily, for instance, on the fact that the claimant has brought his detention on his own head by failing to take advantage of the facilitated removals process at a time when on both occasions when he was offered them he still had outstanding claims to be determined by the defendant.
- I will not repeat what I said this morning about the areas of concern which the court had allowed the defendant time to consider, as well as considering its own position. I make no finding about the suggestion by the claimant that the High Court and the AIT have been misled. This court has not been misled because it has read all the papers in this case. All the documentation in relation to the AIT's decisions are not available. Counsel read out one sentence in the recent appeal in relation to bail on 11 March, after this court had made the order in favour of the claimant to make good a query posed by the court about the AIT being misled. I take that aspect no further.
- As for the defendant's response to the application, the court makes the following observation. Since the pre-action protocol of 30 September 2009, the defendant has had plenty of opportunity to address the evidence needed. The authorities make clear the need for evidence in cases of this nature. I accept that there is no deliberate decision by the defendant not to disclose, but that is not the test. If the defendant thought that it had a sustainable case this morning, even in the absence of the answer to the prospect of deportation, it should have pursued it.
- As for not being able actively to oppose the claim because the defendant was reconsidering the issue of detention, it is to be noted that the defendant did not ask for more time, nor ask for an adjournment for that decision to be made.
- As for all the other headings on which the claimant relied, they have not been responded to. The inference to be drawn from that is that there is no answer to them. Looking at the overall picture, it has been a shambles.
- I have no doubt, therefore, that the defendant's lack of response to the many letters from the claimant's lawyers, the failure to deal with the issues raised in the claim either in the summary grounds or the detailed grounds of defence, the failure to file any evidence dealing with a crucial aspect of the case, the confused and inaccurate submissions in the summary and detailed grounds, the late filing of the acknowledgement of service, the lack of response to the pre-action protocol letter, the late filing of the detailed grounds of defence, and the complete lack of evidence to a crucial aspect of the case is such in my judgment that the defendant's conduct fell far short of the standard one would expect of a public authority engaged in judicial review proceedings that the order sought by the claimant ought to be allowed.
- Mr Goodman, you will amend the draft on that basis?
MR GOODMAN: Yes, my Lady.
MRS JUSTICE DOBBS: And will you send an amended draft in the light of the revision of paragraph 3, the various typographical errors, the addition in paragraph 5, and the additions to be made to paragraph 6?
MR GOODMAN: Yes, my Lady.
MRS JUSTICE DOBBS: And the court will deal with them once received. Thank you.
