Reported Case

In this case the Claimant challenged the lawfulness of the Secretary of State for the Home Department’s (SSHD) refusal of consent to his release on bail pursuant to paragraph 22(4) Schedule 2 of the Immigration Act 1971 (As amended by Immigration Act 2014 section 7). The question for the court was whether, for removal directions to be “in force” within the meaning of the provision, notice of the directions had to be served on the Claimant.

History of the case

The Claimant was granted bail by the First-Tier Tribunal IAC on 14 February 2017 but the SSHD withheld consent for release on the basis that the Claimant was due to be removed from the UK, even though no removal directions had yet been set. The Claimant also argued that the refusal to consent to release led to his wrongful imprisonment.

Permission to Judicial Review was granted and the matter was substantively considered by Deputy High Court Judge Timothy Brennan QC.

The Judgment

By way of a judgment handed down on 30 November 2017 the judge dismissed the claim and held that notice of removal was not required and the SSHD was entitled to withhold consent. Judge Timothy Brennan QC made his judgment with reference to the recent decision made in the Court of Appeal case Lukasz Roszkowski v Secretary of State for the Home Department. The Judge ruled that the Secretary of State is entitled to withhold a decision for a short period in order to come to a considered conclusion.

It was also held that the removal notice did not need to be served on the Claimant since it did not affect the entitlement or the status of the Claimant as it functions as administrative directions to affect removal of the individual by the appropriate authorities. The Claimant relied upon R v Immigration Officer ex parte Shah [1982], the Judge accepted that a detainee did have standing to challenge removal directions, but held that “for the purposes of paragraph 22(4), a direction is "in force" only when the detainee is notified of it, and not before”.

The Claimant is currently seeking permission to appeal to the Court of Appeal.

Representation

The Claimant was represented by Bahar Ata, of Duncan Lewis. Counsel for the Claimant was Mr Gary Dolan of Drystone Chambers.

Bahar Ata is a Fellow of the Chartered Institutes of the Legal Executives and a Director within the Duncan Lewis Public Law and Immigration Departments. Bahar specialises in Public Law with a niche practice in immigration and human rights judicial review claimant matters. She has more than 10 years’ experience representing vulnerable individuals in unlawful detention claims, challenges against the Competent Authority decisions in respect of trafficking matters, age assessments challenges and challenging removals to third countries under Dublin Regulations. Bahar has extensive experience of representing clients at the High Court, Court of Appeal and the Supreme Court.

Duncan Lewis Public Law Solicitors

The Duncan Lewis Public Law Department has been recommended by Legal 500 2017, with particular praise for their work successfully challenging policies under which vulnerable individuals are detained in immigration detention centres. By way of judicial review, the Public Law Department challenges decisions made by public bodies which would otherwise be non-appealable. These can be central or local government, or other organisations carrying out public functions.

The Public Law team have experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court.

Our Public Law solicitors conduct all stages of such matters from initial pre-action correspondence to filing, conducting and settling claims and costs negotiations and litigation. Duncan Lewis solicitors carry out both publicly and privately funded work.

Find full details of this case on Bailii’s website here.