England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 October 2011

1. MR JUSTICE IRWIN: This case is a renewed application for permission for judicial review and for interim relief. The claimant, who is an Iraqi Kurd, is someone it is proposed to remove to Iraq which, for present purposes, means to Iraq via Baghdad. The principal issue, and the only issue which has as yet been argued, is the question of removal.
2. The facts can be summarised reasonably swiftly. He is said to have been born on 1 July 1985. So far as has been established, he arrived in the United Kingdom by clandestine means in July 2002 and claimed asylum on arrival. That claim was refused but he was granted exceptional leave to remain until August of 2006. In August 2005, he was convicted of two counts of false imprisonment of a child and sentenced to two years and four months' imprisonment. Subsequently, in the spring of 2006, he was served with a notice of decision to make a deportation order on the basis that that would be conducive to the public good. He appealed the decision to deport. That appeal was dismissed and his appeal rights were exhausted late in 2006. The deportation order was signed in March 2007. He applied in June 2008 for the facilitated removal scheme. By that stage he had been detained for quite a period. He was accepted on the facilitated removal scheme in July 2008 but later that month indicated that he was considering withdrawing from that scheme. He then refused to sign the necessary disclaimer for return to Baghdad in July 2008, and indicated he would only willingly return to Kirkuk. The process of negotiations, if I can use that term, about voluntary return, continued for some time during 2008. A fresh decision to deport was made in September 2008, the previous deportation order being revoked.
3. Once again the claimant appealed against the fresh decision to deport; that appeal was dismissed in November 2008 with his appeal rights being exhausted that month, and a fresh deportation order was signed on 20 October 2009. He was detained in May 2010, a deportation order having been served on him in November 2009. During June 2010, the claimant was included in the usual pre-clearance exercise, but he refused to be interviewed by the Iraqi delegation, and was not compliant. He was in fact due to be removed on a scheduled charter flight on 6 September 2010 but he was prevented from being removed because of an ex-parte injunction and he issued judicial review on 3 September.
4. As is well known, there have historically been some difficulties with returning Iraqis of Kurdish ethnicity to Iraq via Baghdad. An example of the courts considering those difficulties can be found in Ahmed (R on the application of) v Secretary of State for the Home Department [2010] EWHC 625 Admin. The nub of this case on this point is that there is said to be a risk of inhuman and degrading treatment on his return. That really turns on the degree to which this court should follow the country guidance case dealing with those issues: HM and Others [2010] UKUT 331 (IAC). The country guidance case has been appealed. In granting permission for that appeal, Lord Justice Pill on 15 April 2011 gave the following reasons:

"The AIT was put in a difficult position by developments shortly before the hearing, particularly having resolved that the case should be a country guidance case. Careful consideration was plainly given at each stage to the procedure to be followed. The merits were also carefully considered. I have also considered the helpful written submissions on behalf of the Secretary of State. I am sufficiently concerned about the procedural issues raised, especially in a case which was to become a country guidance case, to grant permission to appeal. They merit consideration by this court. Rulings may have an impact of the merits and Article 15(c) may be argued."

5. Different approaches have been taken by different judges to Iraqi Kurds pending this appeal, as we shall see. I begin by considering what is the essence or nature and impact of a country guidance case. The Senior Tribunal President's Direction has been helpfully provided. The Practice Directions issued by the Senior President of the Immigration and Asylum Chamber's First Tier and Upper Tribunal was issued on 10 February 2010. Section 12 of the guidance deals with starred and country guidance determination. He begins by setting out in 12.1 the impact and nature of a starred determination, which is to be treated by a tribunal as authoritative in respect of the matter to which the starring relates unless inconsistent with other authority binding on the tribunal. Any reading of paragraph 12.2 describing country guidance cases has to bear in mind the contrast with the authoritative nature of a starred case. The guidance as to country guidance determinations reads as follows:

"A reported determination of the Tribunal, the AIT or the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence."

6. The impact of a "country guidance" denomination was considered by the Court of Appeal in S and Others v Secretary of State for the Home Department [2002] EWCA CIV 539. Beginning at paragraph 23, the court reviewed previous authority as to the meaning and impact of a country guidance denomination. It is not necessary for me to quote the contents of paragraphs 23 to 26 in their entirety. Perhaps the most important passages are contained in the quotation in S and Others, of a passage from the judgment of Lord Justice Brooke in R and Others v Secretary of State for the Home Department [2005] EWCA CIV 982.
7. The quotation from S and Others, in paragraph 141, reads as follows:

"Unlike starred decisions, it is always possible for further evidence to show that the original decision was wrong or to expose other issues which require examination. They [that is to say country guidance cases] are not accurately understood or described as 'factual precedents'."

At paragraph 142:

"The system enables the parties and the judiciary to know where to look for what the Tribunal sees as the relevant guidance, the parties to know what they have to deal with, and, if they wish to take issue with it, what it is that has to be the target of their evidence or argument. It enables parties to rely on the material which others have had accepted without reproducing or repeating it every time, or if it has been rejected, to know that there is no point in repeating it. Consistency and the justice which that brings can be provided for, even though differing and perhaps reasonable views can be taken of a wide variety of material. It also has the advantage of enabling the understanding of country conditions to be refined as successive decisions may lead to the identification of consequential issues to be grappled with which had hitherto been unrecognised..."

8. The approach to country guidance cases can be summarised as follows. They are to be distinguished from starred cases which provide authoritative precedent; they are not a legal precedent and it is not helpful to describe them as factual precedent. They are a starting point where they are relevant. In the circumstances adumbrated in the guidance, they are usually an authoritative or good guidance. A principal purpose of the country guidance system is to avoid duplication of evidence, unnecessary repetition of evidence, elongation of hearings, and where possible to avoid inconsistency. They represent an important discipline for the trial of cases before the Tribunals. Those remarks, it seems to me, are consistent with the wording of paragraph 12.2 in the guidance.
9. As I have indicated differing views have been taken by different judges in relation to Iraqi Kurds who it is proposed to return to Iraqi via Baghdad. Bean J has adjourned a number of these cases; it may be on less full evidence than was deployed in some of the cases which followed. On 12 October 2010, Silber J, in this case and in relation to this claimant, refused permission, removed the injunction which had been granted by Collins J on 6 September to prevent removal, and indicated that renewal of the application for permission in this case should not be a bar to removal from the United Kingdom. In the course of that decision he made reference to the country guidance case of HM and took the view that that was a sufficiently strong steer for the decision in this instant case and that the guidance given had addressed the concerns sufficiently and fully.
10. In the case of Osman Garib v Secretary of State for the Home Department, [2011] EWHC 2428, Langstaff J dealt with a very similar application or set of applications to this case. The essence of his approach was that HM bound him. In paragraph 19 in particular he emphasised that it was a matter of principle to apply the law as it currently stood and that, HM being a current country guidance, it is to be followed as deciding the factual issue he was addressing, even though it was subject to appeal, a fact which was known to Langstaff J at the time. Paragraphs 14 to 20 state:

"14. Accordingly, the only conclusion available is that the Upper-tier Tribunal did consider the substance of the complaints and felt able to resolve them to the extent that it did in paragraphs 267 and 270.

15. If that country guidance is accurate and to be followed, then there is no prospect of success for this claimant in this case. Mr O'Callaghan accepts that. He does submit, however, that this is one of those exceptionally rare cases in which a country guidance case may not be followed. He accepts that the general principle is that (see the practice guidance, see the self denying references there have been by the Court of Appeal itself when dealing with country guidance cases) a country guidance case is treated as binding unless it is so old that it is plainly no longer applicable or unless and until it is successfully appealed. He accepts that a case which is subject to appeal nonetheless represents the law until such time as any appeal court subsequently differs from the decision, to the extent that it does.

16. It is a trite proposition, for instance, that if a decision of the Court of Appeal is appealed to the Supreme Court, it stands nonetheless as the law for the time being. Such an appeal does not justify a stay. He submits, however, that, if I were not to grant permission in this case, I should grant a stay. There are exceptional features in relation to this country guidance case arising out of those peculiar procedural problems in HM. Secondly, there is no sufficient evidence here that the Secretary of State in her decision letter of 17th January 2011 took account of the combined circumstance of schizophrenia and suicide risk and that which HM recognised as fact, which is that a returnee is always likely to spend some time in detention because it is the invariable practice to bring returnees before a judge in Iraq to explain themselves before they are permitted into civilian society there.

17. It is also accepted by HM, or at least not contested by the Government, that prisons in Iraq have inadequate facilities and are overcrowded. It is not difficult to contemplate that they may be institutions in which the aggressive psychiatric treatment necessary to protect the claimant from his own suicidal tendencies may not be present. Thus, says Mr Callaghan, in this case I should order a stay. He argues next that, I should do so for reasons of judicial comity. Bean J, on an emergency application, in the case of AA and others (CO/5798/2011) determined on 21st June to stay the claims of around 40 odd applicants who were otherwise due to take a charter flight back to Iraq until 28 days after the Court of Appeal judgment in HM. Mr Blundell points out that he expressly said that the court had entertained the applications on an emergency basis and had not heard full argument and that the respondent was therefore at liberty to apply to vary or set aside his order. Mr O'Callaghan observes that the respondent has not yet chosen to do so. I am told she is about to.

18. Mr O'Callaghan tells me other judges in this building have also granted stays. Mr Blundell confirms that. In the past week HHJ Thornton, HHJ Birtles and Karon Monaghan QC, all sitting as Deputy High Court Judges, have done so.

19. I have to resolve this, as it seems to me, as a matter of principle. I have to apply the law, and that means the law as it currently stands. On the law as it stands, HM, country guidance, is to be followed. That provides that I should treat the conditions on return to Iraq as not being such as to expose a claimant to a real risk of inhuman or degrading treatment or worse. It is unfair to criticise the Secretary of State, even applying the requirement of intensive scrutiny, for not linking more clearly the schizophrenic state and a period of detention on return on the claimant. It is, however, a matter which has given me some concern: but if HM is and represents true guidance, it would not, on its own, as it seems to me, be a sufficient reason to restrain removal or to think that it would be arguable in this case that an immigration judge might come to a different conclusion on a fresh claim and that the Secretary of State should so much have appreciated that her decision, anticipating the decision of an immigration judge, would be wrong on judicial review grounds.

20. Accordingly, I would not give permission as the law currently stands. Should I give a stay? It is trite that, if every time an appeal was to go from one court to another, all cases raising similar points were to be stayed, the system of justice would be bunged up. This does not make sense. The general rule is that a stay should not be given on that basis: there would have to some special and unique feature, some exceptional reason for granting it."

11. In another decision from the middle part of 2011, that of Qader v Secretary of State for the Home Department [2011] EWHC 1765 Admin, Mr Ockleton, sitting as a Deputy High Court Judge, addressed this problem and came to a conclusion in very similar terms:

"19. Somewhat similar claims had been made in respect of earlier flights, and had been considered in HM. The Tribunal recognised that the evidence was not entirely satisfactory but concluded that it did not establish that Iraqis returned to Iraq were generally at risk. Mr Denholm says that the new material helps to elucidate the position, and may also show that the pre-clearance process, by which documentation is or was issued in London, intended to ensure acceptance on arrival in Iraq, does not work (two of those with such documents were returned as non-Iraqi).

20. The latter point may be of some substance in the end, but is largely irrelevant to these proceedings. The Secretary of State does not presume to attempt to return people to countries where they will not be admitted owing to disputes about their nationality. The removal directions in the claimant's case are deferred, and he has not established that in his case there is any reason to suppose that, if he is in the end issued with documents sufficient to establish his nationality, they will be rejected on his arrival in 20. The latter point may be of some substance in the end, but is largely irrelevant to these proceedings. The Secretary of State does not presume to attempt to return people to countries where they will not be admitted owing to disputes about their nationality. The removal directions in the claimant's case are deferred, and he has not established that in his case there is any reason to suppose that, if he is in the end issued with documents sufficient to establish his nationality, they will be rejected on his arrival in Iraq, or that he will be ill-treated as a result.

21. So far as concerns the general allegations of mistreatment, it does not appear that they take the matter any further than was the position in HM. The Tribunal treated such claims with scepticism, and the defendant is entitled to do the same. That is particularly the case because (whether or not the UKBA report is taken into account) the defendant had representatives on the plane and was thus able to take a view about the credibility of what was being said.

22. I have read the report, and the submissions of both parties on it. Although it emanates from within the Home Office, and so is not independent, it makes reference throughout to verifiable evidence in the form of videotape records, and contemporary records in the form of notes on the passengers' meals and visits to the WC. It is clear that that evidence shows that what was said to the press and the UNHCR cannot be the truth. If that report is taken into account, as it would have to be in any further litigation on the issue, it seems to me that it is very unlikely indeed that anybody would take the view that those making the allegations were to be regarded as witnesses of truth.

23. In any event, for the reasons I have given, the defendant was entitled to take the view.

That those allegations did not cast doubt on the conclusions reached in HM ...

30. Mr Denholm's other strand of argument relates to the challenge to HM by way of appeal to the Court of Appeal. He says that given that HM was under challenge the defendant was not entitled to rely on its findings either on 21 January 2010 (when there was no permission to appeal to the Court of Appeal) or on 18 April (when there was). He submits that it was procedurally unfair to certify the claim and so remove a right of appeal, when in another similar case there was a pending appeal, and that the grant of permission to appeal in HM obliged the defendant to treat the new submissions as a fresh claim carrying a right of appeal if refused. In addressing this issue the parties raised a number of points, not all of which were very helpful...

33. Secondly, I do not derive any assistance from submissions about what Pill LJ may have thought or intended in granting permission in HM, or from speculation about what the outcome of the appeal to the Court of Appeal may be. There are many reasons why permission may be granted, one (albeit only one) of which is to allow a higher court to give its approval to a process or decision that has been challenged. And it is not unknown for challenges in the Court of Appeal to country guidance decisions to be successful solely in relation to the specific appellant, leaving the guidance itself essentially unimpaired. No substantive conclusion can be drawn from the grant of permission; but nor on the other hand can it be assumed, as Mr Dunlop would have it, that the only issues to be considered by the Court will be related to the Tribunal's procedure.

34. The proposition that a decision endorsed as country guidance by the President of the Immigration and Asylum Chamber of the Upper Tribunal loses its force by being challenged, or even by permission to appeal it being granted, I regard as entirely unarguable. The Tribunal has reached a reasoned decision after a review of a mass of relevant evidence. That conclusion remains binding within the terms of the Practice Direction, unless or until it is overturned on appeal or replaced by other guidance. And even if that were not so, it remains in the highest degree relevant to the issues that a decision-maker (whether the Secretary of State, or a representative seeking to advise a claimant) needs to take into account. On many questions, there is no country guidance at all, but that does not prevent the Secretary of State taking decisions, including decisions rejecting fresh claims and imposing certification under s 94. A challenged country guidance decision cannot be worse than no guidance at all.

35. The country guidance system has been endorsed by Parliament in s 105 of the 2002 Act (as amended), and by the Court of Appeal, and appears to be regarded with the highest respect by the Courts in Strasbourg and Luxembourg. That is not to suggest that individual country guidance decisions are infallible, but it is a good reason for supposing that it would be undesirable to render it wholly ineffectual. But the claimant's submission would, if accepted, have that effect. Whenever a decision was under challenge nobody would be entitled to rely on it, however reliable it might otherwise appear to be, until the challenge was resolved and (if necessary) further guidance had been given which might itself be subject to challenge. That cannot be right: it is both unnecessary and wasteful of resources.

36. Mr Dunlop also points out that the submission that the challenge to HM makes certification unreasonable or procedurally unfair would create an obligation on the Secretary of State that is wholly unnecessary. If a claimant is threatened with removal in such circumstances he can apply for a stay on removal. That is what happened in Lutete, and a similar order was made by Bean J a few days ago in relation to a number of Iraqis threatened with removal. That is not needed in this case because the removal directions have been deferred; which is sufficient to assuage any fear the claimant might have about his return to Iraq at the moment.

37. But in any event, and whatever the formal status of HM, there is not in my judgment the slightest reason to suppose that the conclusions it reaches are wrong. I have declined to speculate on the outcome of the appeal to the Court of Appeal, but even if that appeal is successful it is unlikely that that Court would itself undertake the task of giving country guidance. If the appeal were remitted to the Upper Tribunal, the latter would look at the available evidence, including no doubt the new material now produced. For the reasons I have given, that material does not show that the guidance should be different."

12. He, too, emphasised that as far as he could determine, HM had addressed the relevant factual situation, had given guidance which should be followed unless there was compelling evidence otherwise, and (I paraphrase) he declined to draw any assistance from submissions about what Pill LJ may have thought or intended in granting permission to appeal in HM or, as he put it, from speculation about what the outcome of the appeal to the Court of Appeal might be. He emphasised, and from great experience in his case, the importance of the integrity of the country guidance system.
13. There has been some new material sought to be introduced into these proceedings and I have considered it de bene esse. In essence, it consists of a bundle index of material produced in another case, and of a supplementary statement from Ms Tori Sicher, dated 21 June 2011. She is a solicitor in the solicitors' unit at the Immigration Advisory Service, who has been closely engaged in either representing Iraqi Kurds intended to be repatriated via Baghdad or in liaison with other solicitors who have such clients. Most of this material, insofar as I have actually seen the material, and certainly in relation to the statement from Ms Sicher, goes to suggest that HM was wrongly decided at the time. Little of the suggested new material actually before me produces fresh material which changes the factual or evidential since HM was decided.
14. One crucial point made by the defendants here is that, in the light of the allegations which arose in relation to the 16 June flight, the defendants sought assistance from UNHCR, the United Nations agency with responsibility for refugees and misplaced persons. At the request of the Secretary of State, UNHCR investigated the original allegations derived from that flight, which were levelled not only against Iraqi prison staff but also against UKBA officials or agents who were said to have perpetrated various assaults and other mistreatment on that group of deportees. UNHCR exonerated the UKBA officials and agents from the mistreatment which was alleged against them. The defendant, through Mr Blundell, makes the point that that not only disposed of a credible case that these people had been mistreated by UKBA officials and agents, but also is an important factor undermining their credibility generally, and as to what they say took place subsequently in Iraqi prisons. I say 'they': it is clear that not all of those who made the allegations or who were involved in those events could be spoken to, but I do not understand there to be criticism of UNHCR's investigation in terms of its thoroughness in investigating so far as they could.
15. In the light of that review of what should be the impact of a country guidance case, it seems to me that in this instant application for permission, one would need a clear and coherent body of evidence to show that the conclusion reached in HM was in error. In particular, one would look for clear and coherent evidence coming after the country guidance decision was reached, before the starting point and guidance given in such a case should be departed from. I recognise that, as Mr Ockleton said in the course of his decision in Qader, permission for appeal may be given for many reasons. It seems to me adventurous to seek to draw quite general conclusions as to the reliability of any case or of any decision -- and particularly a decision which is denominated as a country guidance case -- merely from the fact that permission to appeal has been granted.
16. Although difficulties clearly did arise in the course of the hearing which led to HM being firstly decided and secondly denominated a country guidance case, it seems to me important that Blake J and his colleagues were fully aware of the problems they faced and fully aware of the difficult conjunction of events. Had they had doubts as to whether it was appropriate to denominate HM as a country guidance case, then no doubt they would have held back from doing so. It is not merely that it is a country guidance case, it is a country guidance case which was decided in full knowledge of the problems which are now complained of; and yet the Tribunal felt it right to continue to describe it and denominate it as a country guidance case with all that that implies. No doubt in the course of the appeal which is impending those issues will be ventilated, but at the moment it seems to me that that is a strong consideration in the way that all judges should regard the effect of HM in particular.
17. Standing back from the broader issues, I remind myself that the question at issue here is: can it reasonably be said that it was unlawful for the Secretary of State to decide to return this claimant to Iraq, that decision being take on 6 December 2010? It seems to me the answer is no, and for that reason permission is refused.
18. I do not know whether that deals with the ancillary applications or whether there are any applications.
19. MS NAIK: My Lord, even though permission has been refused for the reasons that your Lordship set out, there is the question, I don't know whether it is still appropriate, the question of a stay on removal in the circumstances. The Secretary of State will speak for himself through Mr Blundell, but I understand that the Secretary of State is not likely to be effecting any removals between now and at least the hearing in HM.
20. MR JUSTICE IRWIN: Yes. The difficulty with a stay is precisely that one could say that, well, the hearing is in five weeks' time, but as you well know it is not to be guaranteed that the decision will not be five or six months after that.
21. MS NAIK: In the circumstances where your Lordship's averted to the lack of clarity as to where the new evidence may precisely lie, and that may be something of course that we take instructions on in respect of any renewal or any further application that may come to this court, the question remains that the claimant is in detention. He has been in detention since 18 May last year and he is not likely ... even notwithstanding your Lordship's decision in this particular application, there are no real prospects in my submission of him being removed, notwithstanding the intention to remove. In my submission the challenge in respect of detention was put on two bases -- leaving aside historic detention for the moment -- the two bases were: one, in July of last year he applied for section 4 accommodation. The Secretary of State has not made a decision in respect of that, that is directly hindering his application, the applications for bail that he has made and any future applications that he may make. On the evidence that we have, just in summary before I address your Lordship in detail, in summary, the Secretary of State's reasons for not granting accommodation are arguably flawed because of the fact that he was previously given accommodation when he was bailed in 2009 without any difficulty and without the proposed restrictions that are now sought, as emerges from the evidence in respect of exclusion zones and so on. So in respect of the section 4 application, in my submission there is clearly an argument that that is being unlawfully denied to him and that if this court considers that question it can properly do so because Mr Rasoul, the claimant, is entitled to apply for bail to an immigration judge, assuming he has accommodation at any point in these proceedings, because he may well put to an immigration judge, as I would seek to put to this court, that the Secretary of State is in fact not going to remove him in any reasonable period of time; that is certainly a prospect. Certainly, again, bearing in mind the comments that your Lordship has made, there may well be particular factual matters, evidential factual matters that the claimant wants to put to the Secretary of State in respect of the changed position in Iraq because the evidence keeps emerging, and is emerging on a daily basis as I see it; and the evidence that we put to this court was the original evidence, if I can put it that way, rather than anything more recent. And so, my Lord, in those circumstances my submission is that the question of section 4 accommodation and the challenge to that failure to deal with it is still a live one.
22. The question of whether this court should consider the grant of bail, the reason I brought the question of bail to this court, is because the Secretary of State's argument is: you can go to a tribunal to apply for bail, but the claimant is in the unusual position of effectively not being able to apply for bail because he has no accommodation; and no bail application before a tribunal can get off the ground without the form of the accommodation. But in any event we do seek to argue the section 4 position because the Secretary of State's decision or failure to provide a decision is not contingent upon any outcome in respect of the removal proceedings, it is wholly separate and in fact has been outstanding for --
23. MR JUSTICE IRWIN: I quite see that the section 4 issue and the bail issues are closely intertwined because until you know whether there is or is not accommodation available, where it is and how secure it might be and so on and so forth, it is hard to know what your bail application should be.
24. What view do you take about this, Mr Blundell? There could be any number of timescales here.
25. MR BLUNDELL: Yes, of course, I understand that, my Lord.
26. MR JUSTICE IRWIN: The accommodation and bail issues are linked but so also they both are linked to timescale. If the practical reality is that the Secretary of State won't in fact seek to remove until the outcome of HM is known, then one has to bank on a number of months.
27. MR BLUNDELL: Well, my Lord, the position as regards that, and I have sought to take instructions on that point in preparation for this hearing, is that as I have indicated to my learned friend already, my instructions are that there are no scheduled charter flights booked at the moment prior to HM. However, it remains the Secretary of State's position and particularly in light of what your Lordship has said today in relation to the permission application on the main renewal point, it remains the Secretary of State's position that there is no bar on her doing so, so it would be perfectly lawful for her to schedule a charter flight. Nothing in either the injunctions granted by Bean J or in the grant of permission by Pill LJ in HM would prevent in law doing that. The factual position is that there are not any being scheduled for the moment, but the legal position is that she could schedule something if she so wished.
28. In terms of HM and the timescale, of course it is true that HM is due to be heard on 31 September and 1 December. In my submission it obviously will take some time after that for judgment to be --
29. MR JUSTICE IRWIN: But because it is obvious that their Lordships in the Court of Appeal are going to have to think about the implications for country guidance cases as a system, it is not just going to be what's the outcome of HM. It's going to be a review of how country guidance cases work, at least to some degree.
30. MR BLUNDELL: I would be slightly reluctant to agree to that analysis of the situation, just for this reason. The grounds in HM, which was drafted by my learned friend, essentially attack the procedure that was used by the Tribunal. I accept that she also makes submissions, as she was entitled to do and as Pill LJ indicated, that the court are to hear submissions on or about the effect on the substantive issue of Article 15(c), because of course I imagine my learned friend's position will be that if a proper procedure had been followed, different evidence might have been heard and a different result may have been obtained in a particular case. But HM is not, as far as I understand the grounds to have been put forward, a challenge to the notional approach to country guidance cases in general.
31. MR JUSTICE IRWIN: All right.
32. MR BLUNDELL: It be that I have misunderstood what my learned friend was saying on the grounds.
33. MR JUSTICE IRWIN: I was thinking about the way Pill LJ came in the matter, but in any event, it is not going to be decided with an ex tempore judgment at the Court of Appeal and the reality is it is likely to be weeks.
34. MR BLUNDELL: It may be that we get it before the end of term, but I appreciate that may not be the case, I can't realistically say. The position has to be seen, as regards this particular claimant, what my learned friend is asking for as I understand it is effectively bail today, she is making a bail application. She has also got the challenge to the section 4 point, the failure to (Inaudible) for redress. As regards the bail point, in summary, I think she may make more detailed submissions in due course, one has to have regard now to the fact that this is a claimant who it has been found can lawfully be removed to Iraq at the moment. That is the position, there's no legal barrier to that happening, so if the Secretary of State wished to charter a flight next week to do so, she could do so in law. In those circumstances there is a very high risk of absconding in this case. There is also the risk to the public. This is somebody who has a very serious conviction for child abduction. That then feeds into the section 4 question because as your Lordship will have seen, the reason why the Secretary of State has not yet been able to obtain a section 4 address is because the Secretary of State is looking for section 4 addresses that are more than three miles from any local school. My learned friend, I understand, will attack the rationality or legality of doing so; it seems to me she must do so if she is to succeed on her s.4 point. In my submission, such a challenge would be hopeless. Again, this is somebody who has a very serious conviction for child abduction, relatively recent, it was only a few years ago. It is true that he has been released on bail in the community for a period of time since then, again, I will face up to that fact. But that doesn't make (Inaudible) now for the Secretary of State to say, I am going to take public security and public safety concerns and in particular concerns about a particularly vulnerable sector of the community, namely, young children, very seriously into account. I am not saying I will not give you a s.4 address, but it is proving very difficult to find one that coincides with what public security requires.
35. MR JUSTICE IRWIN: What that actually leads to is this: you have not made a decision yet on s.4. Is it not wise to set a timescale during which the Secretary of State makes a decision about s.4, and part of that is bound to be what she intends to do as to deportation to removal. I don't think it is fair to everybody just to decide it on the basis that today there has been no decision, there may never be a decision. Surely the Secretary of State should be saying, I am not going to remove before we have seen the impact of HM because otherwise you will be bound to have further applications, not just from this client, but from others. But to take a consistent line on Iraqi Kurds, I am not going to remove to Baghdad until after HM, or I am.
36. MR BLUNDELL: It is actually the Secretary of State's position, in terms of removal is clear, is that she can remove. She may not have chartered a flight at the moment, but she can do it.
37. MR JUSTICE IRWIN: That is rather a different thing saying I am going to before HM is decided.
38. MR BLUNDELL: My Lord, of course, but that depends on the practicalities of actually chartering a plane to do so. Of course in a number of these cases these are joint charter flights with other countries, they are not just the UK doing it. It is an extremely complicated process. But that, in my submission, should not affect the s.4 challenge, that is a distinct judicial review and distinct claim, it has always been distinct. Once your Lordship has refused permission on the removal claim, as your Lordship has done this morning, in my submission, there are no grounds there for a stay, that is the end of that claim. My learned friend may well renew to the Court of Appeal, but in my submission, it should be for the Court of Appeal, if she does so, to decide whether they wish to grant a stay on the matter.
39. MR JUSTICE IRWIN: Yes, I understand, but even supposing the permission application having been refused, whether or not Ms Naik goes to the Court of Appeal, that doesn't dispose of an argument on s.4 or bail.
40. MR BLUNDELL: No, my Lord, I entirely accept that.
41. MR JUSTICE IRWIN: But the outcome of any such argument, whether it is viable or not, is critically determined by whether we are talking about a removal next week or a removal in March.
42. MR BLUNDELL: In relation to the s.4 point, can I take your Lordship to just three documents in the additional bundle of documents that was supplied by the claimant late last week. Your Lordship has said there has been no decision. It should be one of the large, full lever arch file, it is numbered.
43. MR JUSTICE IRWIN: Yes.
44. MR BLUNDELL: It is just under 400 pages; 398 pages. I will show your Lordship three things. First of all if your Lordship turns to page 341, the numbers at the bottom right-hand corner of the page.
45. MR JUSTICE IRWIN: Yes, I have got the number, 341.
46. MR BLUNDELL: That is correct, my Lord. Just to show your Lordship that there has been consideration and more recently there has been communication of the view on the s.4 point. Page 341, two entries up from the bottom, you can see there is a redaction of a name and then pulled from the s.4, "I confirm that the subject is not suitable for initial accommodation. He should not be housed near schools or parks." That said, I should say these are reductive records, these are the Secretary of State's computerised records.
47. MR JUSTICE IRWIN: I understand.
48. MR BLUNDELL: That was on 11 January 2011. Then at page 344, the second entry on the page, "s.4 bail support provided three bail addresses". Unfortunately, all three were within half a mile from both primary and secondary schools. Again, consideration of the issue there. Then there is a decision on 30 August 2011 and that is at page 383. Your Lordship sees the decision letter there, 30 August, replying to a number of different letters which raise the s.4 address issue. At the end of the first paragraph, three lines from the end, "This application has been considered as an application for release on Secretary of State's CIO bail. I apologise for the late response (...)". Then a paragraph saying that if the Secretary of State is going to grant bail, she has to be satisfied that the conditions will be met. The next paragraph, "(...) for the following reasons I regret to inform you I am not minded to grant bail for temporary release." Then over the page, by about the first holepunch, "Unfortunately complications of criminal casework (...) consideration has been made whether your client should be released from detention. He failed to provide a proposed release address. We also state we wish (...) but you have failed to provide any details of these addresses for any check to be made. It has also not been shown that the relevant authority were willing to accommodate your client (...) sufficient influence over your client to ensure that you comply with any terms of release."
49. There is then a reference to the Detention Centre Rules. Finally, in the penultimate paragraph:
50. "The reason for this late response which you should be made aware of is the referral of your client's release (...) made on 7 August 2011 subject to receiving (...) address. This application remains outstanding (...) proposed released address."
51. The effect of that decision in our submission is that the Secretary of State is saying, I have considered your bail application, I have considered the s.4 issue, we have not been able to find yet a suitable address.
52. MR JUSTICE IRWIN: But the implication is that they are not saying, we are not going to look, we are not going to find accommodation.
53. MR BLUNDELL: They are still looking, but it is proving impossible at the moment to find. The difficulty is that s.4 accommodation is provided at a limited number of addresses. They are being searched and as your Lordship has seen from those records on a number of occasions, it simply hasn't been possible to find an appropriate address. That has to be seen against a background of what Nicol J said in the Razai case, which my learned friend has relied on in her grounds. She has provided a copy of that in the key authorities that were produced yesterday.
54. MR JUSTICE IRWIN: Yes.
55. MR BLUNDELL: It is at tab 6 of those authorities, the relevant paragraph. It was a not dissimilar challenge to a failure by the Secretary of State to provide a s.4 bail address and was also a challenge to the legality of the policy and there is a question about whether there was a secret policy in issue here. If your Lordship turns to paragraph 77, it says this: "The unpublished parts of the October 2010 (...) do expressly contemplate that some (...) evidence might be refused both initial and (...) accommodation. That policy would apply to none of these claimants (...) even in its published version it is said the purpose of the pro forma was to provide the s.4 bail (...) level of information to arrange suitable section bail accommodation if appropriate (...)."
56. The reason I rely on that is to show that there is no obligation on the Secretary of State to provide a s.4 bail address. What she has to do is use her best endeavours, the terminology used by Nicol J elsewhere in the judgment, to look for one.
57. MR JUSTICE IRWIN: I am sorry, you still haven't persuaded me that there has been a decision. You are hanging on. You are saying, we are looking, we can't find one in August. The August letter that you have read to me has passages which are contradictory because on the one case you are saying, no bail, and the other, you are saying we are still potentially looking for an address. You have not decided.
58. MR BLUNDELL: In my respectful submission, we have. The point is the Secretary of State is continuing a search for suitable accommodation, she is not going to grant bail.
59. MR JUSTICE IRWIN: So you look for a suitable accommodation, but not grant bail; that is an entirely academic and contradictory position, isn't it? Why look for further accommodation if you say, this person is never going to get bail?
60. MR BLUNDELL: Because the reason is, although the Secretary of State can't grant bail, an immigration judge could. The claimant is well aware that the Secretary of State is not going to grant bail. He has asked for it, he has been refused it on 30 August letter. The one thing that is entirely clear from that letter is that the Secretary of State will not grant bail or temporary release. But that of course does not prevent the claimant going to an immigration judge and asking an immigration judge to grant bail.
61. The difficulty this claimant has faced, as the immigration has said in effect, the policy that I am now applying is that I need you to come up with an address to which I can release you and then I will consider on the merits whether or not you get bail. The claimant can, as the claimants in Razai did, ask the Secretary of State, at least if she is not going to release him on bail, to provide an address where, in principle, he can be released. Then once he has that address he can go to the immigration judge, the Secretary of State can turn up and say, well, I don't agree to him being released on bail, I resist the application, but if he is to be released it would be to this address. That is the effect and purpose of the Secretary of State still looking at the s.4 issue, even if she doesn't grant bail.
62. MR JUSTICE IRWIN: Where is the evidence of what you have done to look beyond that letter?
63. MR BLUNDELL: The only reference I can take you to are the two (Inaudible) references. I can't take your Lordship to anything else.
64. MR JUSTICE IRWIN: We don't know how many places have been looked at, we don't know who did it, we don't know when it was done, we don't know anything that has happened since August and we don't know what your policy is going to be on seeking to actually remove whether that is going to happen in two weeks' time or in the summer of next year.
65. MR BLUNDELL: I can't take your Lordship any further.
66. MR JUSTICE IRWIN: I am not going to allow the factual uncertainty to drag on, Mr Blundell. It seems to me what this claimant is entitled to, despite the refusal of his leave, a clear statement by you of what you are going to do. The justice of this can be met by adjourning the applications on the s.4 issue and any consequential application for bail. It seems to me we should set a timetable by which they may be restored and that before they are restored the Secretary of State should indicate what she has done to look for s.4 accommodation, what she proposes to do or not to do, and in a witness statement, give an indication of what her intention is in relation to this claimant. Vis-á-vis timescale: I appreciate that she is free to remove, but that doesn't absolve her of coming to a conclusion as to what she is going to do when there are other legal applications dependent on that decision. The court is bound to be looking differently at an application for bail and an application that you should make active steps for accommodation, if, in fact, Mr Rasoul is not going to be removed until May next year. If, on the other hand, as is open to you, you are going to organise a flight before the HM decision is available, then that is a wholly different factual situation and no court can decide, be the utility or the legality of any failure to progress a s.4 enquiry for accommodation, or to deal with the bail point, until we know what the timescale is. It is just academic.
67. MR BLUNDELL: My Lord, I am grateful for that indication.
68. MR JUSTICE IRWIN: How long do you want for a witness statement that lets the claimant know where he is?
69. MR BLUNDELL: It is 20 October today. Could I ask for -- don't want to push my luck too far -- 14 days should be sufficient.
70. MR JUSTICE IRWIN: Where does that get us to? Still three weeks short of HM being heard.
71. MS NAIK: Can I just take some brief instructions, my Lord?
72. MR JUSTICE IRWIN: Yes. (Pause).
73. MS NAIK: If the reality of the situation is that the claimant is seeking a response from the Secretary of State in order that he might seek bail either from this court or from a tribunal, in the uncertainty at the moment as to whether or not there will be a removal, but if one of the critical features about this case is the judgment in HM, then the Secretary of State's asking for 14 days at this point does prejudice the claimant's position because the sooner he has a response the sooner he will be able to make any relevant application. The longer this matter goes on, the longer he is detained. There will be, in respect of this claim if permission is granted or in any event where we come to look at the question of permission substantively, the question of the impact of the Secretary of State's failure to grant the s.4 accommodation for the last 16 months, if the Secretary of State could or should have granted accommodation at the outset, given that she previously had done, then the claimant may be able to argue, if he can show that it would have made a difference, that his detention has been unlawful.
74. MR JUSTICE IRWIN: But hang on a minute. Suppose that in 10 days' time the indication is that they are going to remove your client the following week. Whether or not there has historically been unlawful detention would not prevent detention in the anticipation of a very early date removal.
75. MS NAIK: I obviously accept that in terms of a prospective period, that may be different. This is rather difficult because we are operating in somewhat of a vacuum. I have spoken to counsel, now in appeal in the Garib (As heard) case and there is no reason in principle why this claimant should not follow the line that Garib has taken. The other point the Secretary of State has made is that although she says there is nothing in law to prevent this claimant's removal, given the approach of Bean J in respect of removal, actual prospective removal on the day of 21 June, although the Secretary of State says there is nothing in law to prevent removal, in light of Bean J's comments and in light of his order, if the Secretary of State were to go to the expense of chartering another plane, the Secretary of State will find herself with a very similar application which the Secretary of State hasn't chosen to progress since 21 June. Although she says (Inaudible) evidence, she has not sought to progress that matter. In my submission it is extremely unlikely at this point that the Secretary of State is going to be able to, whether there is an intention or not --
76. MR JUSTICE IRWIN: That is tantamount to threatening that you will ask a judge at the last minute to prevent removal in the face of my decision today.
77. MS NAIK: My Lord, no, there's no suggestion of that. What I am saying is that the Secretary of State is saying that there is no legal bar to removal and as of today, as a result of this decision, your Lordship's decision in this case, that is correct. But in light of Bean J's decision in respect of the last charter flight, my point to this court, which is directly addressing really the Secretary of State, is that if she were to charter another plane, then there is no reason that another judge would take a different view to Bean J in respect of injunction proceedings, which are different from the question of permission in these proceedings.
78. MR JUSTICE IRWIN: What follows from that are two or three things. First, that is it even for desirable for the Secretary of State to take a decision about what is, in practice, going to happen, because I imagine that if she does decide that there will be a charter flight before HM is heard, it is entirely predictable in respect of this claimant or others that there will be some application to prevent that, so a planned position is better from everyone's point of view.
79. MS NAIK: Indeed, my Lord.
80. MR JUSTICE IRWIN: The second thing that flows from what you have said is, I emphasise, there is nothing to prevent the Secretary of State seeking to remove this client, this individual. I direct that on any application for an injunction preventing his removal that this judgment, or these reasons, are presented to any judge.
81. MS NAIK: Indeed, my Lord.
82. MR JUSTICE IRWIN: Because it seems to me essential to do that. It is for the parties to decide whether a transcript is obtained of this. The substance of this judgment has got to be before any judge.
83. MS NAIK: My Lord, indeed. It may be appropriate, given that there is a possibility or likelihood of a removal, either now or in the future, to make the application for the transcript so that there can be no doubt about that. I think my learned friend would probably agree on that basis that we should have the transcript.
84. MR BLUNDELL: I would agree with my learned friend's application to your Lordship that it be released from the usual prohibition on citation, given your Lordship's consideration, particularly in some detail of the position with country guidance cases. Obviously your Lordship has seen what has happened before. Your Lordship has now had a chance to see everything.
85. MR JUSTICE IRWIN: If Qader is going on appeal then it may be helpful to have two or three views when that is argued, apart from anything else along the way.
86. MR BLUNDELL: My Lord, quite.
87. MS NAIK: My Lord, I think it is Garib that is going to appeal as opposed to Qader.
88. MR JUSTICE IRWIN: No, it is my fault, I have got it the wrong way round. Well, you can have a transcript and it can be released from the usual prohibition on citation. I am going to give you 14 days for the witness statement, but no extensions, so that has got to be a real timetable. Mr Blundell, you will no doubt advise your client thoroughly, but it would seem to me desirable to make a proper decision in relation to the cohort of Iraqi Kurds whom the Secretary of State would wish to deport. Either you are going to go ahead at HM or you are going to wait for HM because everything else is likely to produce all sorts of scrappy applications and an awful lot of cost and confusion.
89. MR BLUNDELL: With that in mind, I entirely hear what your Lordship has said and I understand that position. Can I just be absolutely clear as to what it is your Lordship will expect to be covered in the witness statement.
90. MR JUSTICE IRWIN: The witness statement deals only with this individual and the witness statement must set out what steps have been taken to achieve suitable s.4 accommodation and what plans there are for any further investigations with a timetable. I don't think any court is going to be impressed by a witness statement that says, "and we are continuing to look".
91. MR BLUNDELL: I hear what your Lordship says.
92. MR JUSTICE IRWIN: That is not going to help anyone.
93. MR BLUNDELL: Yes.
94. MR JUSTICE IRWIN: The witness statement should also, it seems to me, if at all possible set down the decision of the Secretary of State on whether in practice they are going to seek removal before the outcome of HM or not.
95. MR BLUNDELL: For this particular claimant.
96. MR JUSTICE IRWIN: For this particular claimant. But obviously as I have already indicated, it is going to be a very messy process. If the statement says, we want to remove him, but we have made no decision about all the other cohorts of Iraqi Kurds, you are just landing yourself with confusion. That doesn't form part of my judgment, that is merely an observation.
97. MR BLUNDELL: I see the force of what your Lordship says.
98. MR JUSTICE IRWIN: Having been the out-of-hours duty judge, you will understand where I am coming from.
99. MR BLUNDELL: Your Lordship has particular experience of the issue.
100. There is just one issue on the transcript. It may have been I have taken an incorrect note of what says your Lordship has said, but I think in your Lordship's judgment you indicated that the Secretary of State had invited UNHCR to carry out investigations.
101. MR JUSTICE IRWIN: I did because that was my understanding.
102. MR BLUNDELL: If that is a reason from what I said today, no, I apologise. No, in fact, what happened was the Tribunal invited UNHCR to (Inaudible), the reason being, UNHCR had made an earlier application to be an interested party, as it is entitled to do. That has been granted, it made written representations, and then after the hearing, Blake J (Inaudible) members as is indicated in the HM decision itself, asked the parties for their observations on what had gone on with charter flights.
103. MR JUSTICE IRWIN: I am grateful for that correction, Mr Blundell. I would ask the shorthand writer, or those preparing the transcript, to correct that and I will check it. I am not going to reserve the outstanding issues to myself because by the time the necessary work is done I will not be sitting in the Administrative Court. But it seams to me that once the transcript is there, there is no problem about another judge deciding those issues.
104. MR BLUNDELL: I am very grateful, I am grateful that your Lordship had (Inaudible) commitments today.
105. MS NAIK: My Lord, you will have my letter by the end of the day.
106. MR JUSTICE IRWIN: That's good.