In the case of Mahboubian v Secretary of State for the Home Department [2020] EWHC 3289 (Admin), the High Court decided that the Home Office couldn’t be held responsible for an eight-month delay in finding immigration bail accommodation for a high-risk offender. The court instead found that pandemic disruption was at fault for the delay.

Background

Mr Mahboubian had committed sexual offences and was detained at the end of his seven-year criminal sentence, in August 2019. The court looked at Mr Mahboubian’s next 15 months in detention as three distinct periods, in order to assess whether each spell was “reasonable” under the third Hardial Singh principle. 

For the first period, lasting five months, the court found that Mr Mahboubian had not complied with the travel documentation process despite the Home Office’s active inquiries on that front. As such the court didn’t hesitate in holding that the first period of detention was lawful.

The meat of the judgment concerned the second period, running from January to August 2020.

Eight-month delay after grant of bail

The second period of Mr Mahboubian’s detention followed a grant of bail in principle by the First-tier Tribunal on 30 January 2020. Bail was conditional on suitable government accommodation being found. The Home Office argued that sourcing accommodation was not an easy feat given Mr Mahboubian’s high risk of harm.

The search for an address went on for eight months. Mostly that search came down to the Home Office chasing its accommodation providers dozens of times, but not much else. Mr Mahboubian went on to make two more successful bail applications, probably hoping the tribunal could move the process along a little. As the First-Tier Tribunal has no power to source accommodation or even to force release, all it could do was express (in the High Court’s words) “increasing exasperation at the failure to provide suitable accommodation”.

Mr Mahboubian commenced judicial review proceedings. Interestingly it was Mr Justice Johnson, who decided the Humnyntskyi bail accommodation case a few months back, who also granted Mr Mahboubian permission to proceed, saying that it wasn’t enough for the Home Office to show that it had “repeatedly chased” the accommodation providers. Likely Johnson J had had enough excuses for bail accommodation delays.

Pandemic disruption

On a full hearing, though, Mostyn J took a different view. He noted that criticisms could “reasonably be made” for the delay, but went on to canvas the difficulties faced by the Home Office during the pandemic, which he found made the task of finding accommodation for the claimant “virtually impossible”.

Despite the slow progress made in getting Mr Mahboubian a travel document, and that fact that no returns to Iran took place during this eight-month period, Mostyn J held that

At no point in this second phase could it be said that the defendant should have reached the conclusion that she would not be able to implement a forced return within a reasonable time, thus bringing to an end her lawful power to detain the claimant.

Mr Mahboubian’s continued detention between January and August 2020 was therefore lawful.

Absent considerations

The pandemic has obviously caused problems for clunky bureaucracies like the Home Office, and it is important to note the discretion the courts will permit them because of it. But this broad a discretion for such a lengthy delay is unusual and raises a few questions. There are two issues in particular that are conspicuously absent in the court’s conclusions. 

The first is that Mr Mahboubian was granted bail in principle in January 2020, almost two months before the first lockdown began. True, there was a bit of a fight at the beginning about his entitlement to bail accommodation, but the Home Office approved a grant of support under Schedule 10 of the Immigration Act 2016 in February 2020. Arguably the Home Office’s complaints of lockdown disruption don’t apply to at least the first couple of months of the period under scrutiny, but oddly the court didn’t seem to consider this.

The second issue is ‘grace periods’: the ticking clock for the Home Office to arrange a detainee’s release after a breach of the Hardial Singh principles. This is an issue the courts have been putting out a lot of guidance on lately and it’s surprising not to see it mentioned here. In AC (Algeria) [2020] EWCA Civ 36, the Court of Appeal, no less, held that five weeks was “ample” time to sort out accommodation for a high-risk offender.

It’s hard to say how much leeway judges should give the Home Office in light of the coronavirus pandemic, but eight months does seem like a lot, particularly where Mr Mahboubian had been granted bail and there was no prospect of removal to Iran. Hopefully this will not be the last word on the level of discretion the courts will allow the government during the pandemic — particularly when people’s liberty is at stake.