Roszkowski v Secretary of State for the Home Department, Court of Appeal - Civil Division, November 23, 2017, [2017] EWCA Civ 1893

Issuing Organization:Civil Division
Actores:Roszkowski v Secretary of State for the Home Department
Resolution Date:November 23, 2017
 
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Neutral Citation Number: [2017] EWCA Civ 1893

Case No: C4/2015/1843

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE,

QUEENS BENCH DIVISION, ADMINISTRATIVE COURT

MR JUSTICE CRANSTON

CO/259/2015

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23/11/2017

Before:

LORD JUSTICE McCOMBE

LORD JUSTICE UNDERHILL

and

LORD JUSTICE FLAUX

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Between:

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Christopher Jacobs and Katherine Olley (instructed by Ahmed Rahman Carr LLP) for the Appellant

James Eadie QC and Carine Patry (instructed by the Government Legal Department) for the Respondent

Hearing date: 12 October 2017

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Lord Justice McCombe:

  1. This is an application for judicial review which, by an order of 9 August 2016, Laws LJ directed should be heard in this court rather than in the Administrative Court. That order superseded the Lord Justice's earlier order of 26 May 2016 by which he had granted to the applicant, Lukasz Roszkowski, permission to appeal from the order of Cranston J of 3 June 2015 refusing him permission to apply for judicial review.

  2. The case concerns the application of section 4 of, and paragraph 22 of Schedule 2 to, the Immigration Act 1971. Under those provisions, a person detained pending deportation may apply to a Chief Immigration Officer or to the First-tier Tribunal for release on bail. Paragraph 2(4A) of Schedule 3 to the Act applies paragraph 22 of Schedule 2 to such cases. I shall have to refer to other provisions of the Act and schedules later in this judgment, but the important provision for this application is to be found in paragraph 22(4) of the Schedule. It is in these terms:

    ``(4) A person must not be released on bail in accordance with this paragraph without the consent of the Secretary of State if-

    (a) directions for the removal of the person from the United Kingdom are for the time being in force, and

    (b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.''

  3. In the present case, following the making of a deportation order against the applicant on 9 December 2014, directions were set for his removal from the United Kingdom on 26 January 2015. On 16 January 2015, the applicant applied to the First-tier Tribunal (Immigration Judge Powell), sitting at Newport, for bail. After hearing evidence from the applicant's proposed surety (his mother) and submissions from the advocates for the applicant and respondent, the judge decided that bail should be granted. There was a short break in proceedings in which the respondent's representative took instructions over the telephone from the relevant official (a civil servant of Grade 5 in the respondent's department). On behalf of the respondent, the official concerned refused consent to the applicant's release, pursuant to paragraph 22(4) of Schedule 2. This decision was communicated to the judge who commented, ``A civil servant without hearing the evidence that I have heard, has decided to disregard my views''. The reasoning behind the refusal of consent was more fully set out in a letter of 19 January 2015 to which I will return.

  4. In paragraph 1 of the Amended Statement of Facts and Grounds, the applicant seeks judicial review of:

    ``(i) The lawfulness of Section 7 of the Immigration Act 2014 and the attendant amendment to paragraph 22 of schedule 2 of the Immigration Act 1971.

    (ii) The Secretary of State's detention of the Claimant from 16 January 2015 after Immigration Judge Powell granted bail to the Claimant;

    (iii) The Secretary of State's refusal to give her consent under section 7 of the Immigration Act 2014 upon Immigration Judge Powell granting bail to the Claimant.''

    The relief claimed was set out extensively in paragraph 2. At the hearing, it was not clear the extent to which the various heads of relief claimed remained live. Therefore, we asked Mr Jacobs for the applicant to inform us in writing which of these heads were still being pursued. Mr Jacobs kindly responded by letter of 16 October 2017, but in doing so, rather than limiting and clarifying the claim within the parameters of paragraph 2, he formulated seven proposed declarations in very different form from those identified in the Statement of Facts and Grounds. In the circumstances, I do not propose to say anything further about appropriate relief at this stage of my judgment.

  5. Permission to apply for judicial review was refused on consideration of the papers by Andrews J and on renewed oral application by Cranston J. In short, both judges considered that paragraph 22(4) simply meant what it said. They decided that the respondent was entitled to withhold consent to the applicant's release and that the paragraph was not unlawful. By order of 19 January 2016, Moore-Bick LJ refused permission to appeal. After the renewed application for permission to appeal, made at an oral hearing, Laws LJ initially granted permission to appeal. However, pursuant to his subsequent order, to which I have referred, the applicant now has permission to apply for judicial review and we have heard his application.

  6. The background facts of the case are as follows.

  7. The applicant is a Polish national who came to this country in 2007. In November 2012 he was convicted in the Magistrates Court of possession of a controlled drug of class B (cannabis) and of failure to surrender to custody at the appointed time. For these offences, he was fined. In June 2013 he was convicted of robbery and wounding with intent to cause grievous bodily harm and was sentenced to 4 years imprisonment for each offence to be served concurrently, giving rise to a total sentence of four years imprisonment. On 31 July 2013 he was given notice of the respondent's intention to make a deportation order against him in accordance with regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006. After consideration of representations, the deportation order was made on 9 December 2014 and the respondent authorised the detention of the applicant pending removal. On 22 December, the applicant lodged an appeal against the deportation order.

  8. The written application for bail was dated 21 December 2014 and on 7 January 2015, notice of hearing of the application was given for 16 January 2015. On the 15 January, the respondent sent to the Tribunal and to the applicant's solicitors a ``Bail Summary''. In that summary, the overarching considerations for the opposition to bail were summarised in the first paragraph of the stated reasons in these terms:

    ``The Home Office regards protection of the public as paramount. It is Home Office policy that in cases where a person is being deported because of a criminal conviction, the starting point still remains that the person should be released on bail unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the ``deportation criteria'') are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.''

  9. There followed the statement that the decision had been made that the applicant's presence in the UK was not conducive to the public good. The convictions were referred to and it was stated that,

    ``The applicant has been assessed as a medium risk of serious harm to others...''

    It was said that he was to be re-assessed for re-offending on release. However, it was submitted that he was a repeat offender with a previous failure to surrender to custody. He presented, therefore, ``a clear risk of reoffending''. It was argued that the nature of his offences and the need to protect the public from further offences were important factors on the issue of the grant of bail. The adequacy of the proposed bail surety was also challenged.

  10. We are told that, after hearing submissions, the judge retired for a lengthy period. On return he gave detailed reasons for deciding that bail should be granted. He provided the respondent's presenting officer with a handwritten note of the reasons. The hearing was adjourned while the presenting officer took instructions over the telephone. The applicant's solicitor, who was present at hearing, says in her witness statement, which is not challenged, that the presenting officer told the judge on return as follows:

    ``(i) That she had spoken by telephone to a Mr Andrew Jackson a grade five civil servant in the Home Office

    (ii) That he [Mr Jackson] had noted the applicant's probation officer's comments

    (iii) That he had also noted that the Applicant's first offence was a caution for possession of a weapon and the second conviction involved drug use in 2012

    (iv) That alcohol misuse was not an excuse for the conduct of the Applicant

    (v) That the law is that the Applicant can be deported and returned.''

  11. The judge's written reasons for his decision, dated the same day, need to be set out fully. They were these:

    ``Removal directions are set for 26th January 2015.

    The setting of removal directions within fourteen days of this hearing is not, of itself,...

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