ADEMILUYI 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: 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

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