QUEEN'S BENCH DIVISION
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
|ON THE APPLICATION OF|
|- and -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
MISS H. THORNLEY (instructed by the Government Legal Department) appeared on behalf of the Defendant.
Crown Copyright ©
THE DEPUTY JUDGE:
Application to vary the order of Lane J
The Interim Application for Release from Detention
The submissions of the parties
"After considering the evidence from all the information presented on the day, the panel considered there are factors which suggest that removal within a reasonable timeframe in the particular circumstances of this case may not be possible.
Reason for balance: The panel has recommended release in this case as there is no prospect of imminent removal. There are barriers in place which frustrate imminent removal. The barriers are obtaining a travel document. Due to the timescale of this, the panel have recommended release. The panel have noted the subs risk as being medium and to mitigate any risk upon release the panel have recommended appropriate measures be in place to restrict the risk factors, such as reporting curfews, approved accommodation or tagging. As at current, there is no prospect of removal. The panel have recommended release.
Panel decision - recommend release."
"Factors in favour of release: Mr Habeb is an AaR level 2 due to mental health concerns for which he is prescribed medication. He was previous sectioned under the Mental Health Act in 2016. He also has tendencies to self-harm, but no new concerns raised, last reviewed on 17 September 2020. The EDT barrier. A video call interview was completed on 20 August 2020 and Mr H has been advised to contact the embassy personally as per the CID notes of 17 September 2020. FRS has provisionally agreed.
Reason for balance. The CPP Panel agreed to the take case forward to unit(?) due to no DR uploaded since 13 July 2020 and the CPP lit ops expert raised great concerns as to the lawfulness of Mr H's current detention if he submits any litigation, as no current DRs are uploaded to the CID/Atlas. The CPP have recommended a release in this case as there is no prospect of imminent removal. The EDT barrier in place frustrates imminent removal due to the timescales of this. The CPP have recommended the release. The CPP have noted Mr H's harm risk, agreed elements of public protection and to mitigate any risk upon release the panel have recommended appropriate measures to be in place to restrict the risk factors, such as reporting, curfews and approved accommodation or tagging. At present, there is no prospect of removal. The CPP has recommended a release."
"Factors in favour of release: Mr Habeb is an AaR Level 2 due to a mental health concern for which he is prescribed medication. He was previously sectioned under the Mental Health Act in 2016. He has tendences to self-harm, with no concerns raised, last reviewed 17 September 2020. O/S EDT is the barrier. A video call interview was completed on 20 August 2020 and Mr H has been advised to contact the embassy personally per CID notes 17 September 2020. FRS has provisionally agreed. Reason for balance. The CPP agreed to take case forward to unit. Due to no DR uploaded since 13 July 2020 and the CPP lit ops expert raised great concern as to the lawfulness of Mr H's current detention if Mr H submits any litigation as to no current DRs are uploaded to the CID/Atlas. The CPP have recommended a release in this case as there is no imminent prospect of removal. The EDT barrier in place frustrates imminent removal. Due to the timescales of this, the CPP have recommended a release. The CPP have noted Mr MR's harm risk, agree elements of public protection and to mitigate any risk upon the release. The Panel has recommended appropriate measures be in place to restrict the risk message, such as reporting, curfews and tagging."
"In the CID entry on 30 October it is noted that the barrier EDT video interview conducted with the Egyptian Consulate on 20 August 2020 the EDT approximate timeframe is up to one year. There are travel delays due to coronavirus. Flights are available once a travel document is issued. Egypt is subject to entry restrictions. Action mandated by director and agreed by AD. Submit release referral ASAP."
"[Counsel] submitted that judicial review was inappropriate since bail was an alternative remedy and in any event it was a collateral challenge to the refusals of bail. Both his points are thoroughly bad. An adjudicator in considering a bail application is not determining (indeed, he has no power to determine) the lawfulness of the detention. The grant of bail presupposes the power to detain since a breach of a bail condition can lead to reintroduction of the detention."
As I understand it, Andrew Collins J seeks to differentiate the role of judicial review to examine the lawfulness of detention, which is an issue which is distinct from a bail application.
The Grace Period
The submissions of the parties
The threshold the claimant must satisfy to be granted an interim order
"The only barrier to removal at present is the ETD and Mr H has expressed a wish to return to Egypt. I note the CPP recommendation, however, having liaised with RL on the progress of the EDT today. I have been advised that this will be following this case up and including it in a list of cases they will discussed with the Consulate in the second week of December. Whilst there are no current timescales, this is a positive move and could assist greatly in getting an agreement. Whilst removal may not be imminent, I am satisfied that steps being taken to remove within a reasonable time remain a realistic prospect and authorise detention on this basis."
"We need to factor the event that the Egyptian authorities may remain closed and I would recommend that the investigations are made into possible addresses and a robust release plan is in breach in the event removal may be less reasonable as the Egyptian authorities remain closed. However, I am content that the detention remains proportionate. Detention is authorised for 28 days."
"Due to coronavirus, the Embassy and the Egyptian authorities are open, but operating a reduced EDT service. Process delays are unavoidable. This case was raised by the EMB Meeting on 16 December 2019, informing the officials that the subject wishes to return home. The EMB agreed to face to face interview with the required receipt of clearance from Cairo. A face to face interview is required at the Embassy, however, and this is not currently possible due to coronavirus safety concerns. RL are liaising with the Embassy to consider potential options in progressing EDT applications. The Egyptian authorities announced that from 1 July international flights will be permitted to and from Egyptian airports."
"If RL are liaising closely with the Consulate for the outcome of the interview though the EDT approximate timetable is up to one year, there are travel documents delay due to coronavirus."
"Imprisonment involves the infringement of a legally protected right and therefore must be justified. If it cannot be lawfully justified, it is no defence for the defendant to say he believed he could justify it."
Accordingly, I reject the submission made by Miss Thornley in relation to the failure to authorise, at least for these purposes today.