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One month a reasonable time to source bail accommodation during pandemic
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In R (Babbage) v Secretary of State for the Home Department  EWHC 2995 (Admin), the High Court found that a person with an extensive offending and adverse immigration history who posed high risks of re-offending and absconding was unlawfully detained because of the poor prospects of enforcing his removal to Zimbabwe, and delays in sourcing a release address. The judgment is fact-specific, but the court’s approach to these two issues is likely to be useful to practitioners in other cases, particularly the analysis of the relevance of release address delay.
Background facts: involuntary removal to Zimbabwe
Mr Babbage had permission to stay through UK ancestry from 2003 until 2012. That year, the Home Office initiated deportation proceedings following a conviction for robbery, for which he received a 30-month prison sentence. He had previously brought judicial review proceedings which led to an order for release from detention on the basis that there was no realistic prospect of removal to Zimbabwe within a reasonable period of time, meaning that his detention breached the third Hardial Singh principle.
In this latest case, Mr Babbage challenged his detention from 7 February 2020 until his release on 29 April 2021. This followed a short custodial sentence for a breach of a community order.
The obstacle to Mr Babbage’s removal was the Home Office’s inability to secure an emergency travel document (ETD) from the Zimbabwean authorities. It had been the longstanding position of the Zimbabwean government that they would only issue ETDs to voluntary removals. Mr Babbage would not return to Zimbabwe voluntarily.
A Home Office witness gave evidence that as a result of an agreement with the Zimbabwean government to post an immigration official to its embassy in London, from September 2018 it had been possible to enforce the removal of involuntary returnees. In November 2019, this official interviewed Mr Babbage and, following verification checks, agreed to issue an ETD.
There was then a delay due to negotiations over help with reintegration, and then in March 2020 the process ceased because of the Covid-19 pandemic. The court heard that there had been six enforced removals of involuntary returnees in the first quarter of 2020 but none thereafter. An additional obstacle from January 2021 was the unwillingness of the Home Office’s escorting contractor to fly to Zimbabwe due to the presence of the Covid-19 Beta variant.
The Hardial Singh issue
At the outset of his consideration of whether Mr Babbage’s detention complied with the Hardial Singh principles, the judge stated:
At every stage of his administrative detention commencing in February 2020, the Claimant’s historic conduct in my judgment gave rise to significant risk of absconding and re-offending. Whilst the most serious offence had been in 2011, there had followed a continued pattern of re-offending, including repeated failures to comply with Court orders and bail conditions. The risk of absconding was enhanced by the Claimant’s clear statements at all stages that he was unwilling to return voluntarily to Zimbabwe.
There was no evidence before the court from the relevant Home Office decision-makers. The judge held that this placed the department at a disadvantage in discharging the duty on it to disclose all relevant facts and the reasoning behind the decisions challenged. A witness statement had been placed before the court, but the witness had not been directly involved in the decisions, the statement was based on a review of the records and in a number of respects it sat uneasily with the contents of the records and other evidence.
The judge gave “some weight to the general problems and uncertainties which the pandemic induced in all areas of public and private life at the various stages of the Claimant’s detention”. But he found that there was no realistic prospect of removing Mr Babbage within a reasonable period of time from 18 September 2020, which allowed for a one-week grace period following a detention review on 11 September 2020:
In my judgment, the point had now been reached where, giving full weight to the risks posed by the Claimant, there was no realistic prospect of his removal within a reasonable period. Seven months on from the original detention, the available information gave no basis for any useful assessment as to when enforced removals might recommence…
The section 4(2) bail accommodation issue
Under section 4(2) of the Immigration and Asylum Act 1999, the Home Secretary
may provide, or arrange for the provision of, facilities for the accommodation of a person if –
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected.
Mr Babbage applied under this section for accommodation. His application was granted in principle on 1 July 2020, but no bail address was forthcoming. It was common ground that while the Home Office is not obliged to provide section 4 accommodation, it does have a legal duty to:
(i)… consider and make a decision on a s.4(2) application within a reasonable period of time; and if the application is granted,
(ii) to source accommodation within a reasonable period of time.
The issue of delay in providing section 4 accommodation was addressed in AO v The Home Office  EWHC 1043 (QB). This judgment was handed down the day after argument in Mr Babbage’s case concluded and there was a further hearing to consider it.
The AO decision on bail accommodation delay
In AO, the court decided that on the facts of that case there had been a number of breaches of the section 4 duty due to errors and delays in deciding the application and in sourcing accommodation once the application had been granted. The court decided that if the section 4 duty had been complied with, accommodation would have been in place by the time that detention reviews acknowledged the claimant should be released.
The errors in deciding AO’s application for section 4 support therefore bore upon, and were relevant to, the decision to detain, and so meant that detention was unlawful. The department failed to provide satisfactory evidence to establish that detention would have been maintained even if accommodation had been in place, meaning that AO was entitled to compensatory rather than nominal damages.
Delay in Mr Babbage’s case
In Mr Babbage’s case, the court accepted that the one month – from 1 June to 1 July 2020 – it took to grant the section 4 application was reasonable.
Mr Justice Soole then turned to the issue of delay in finding accommodation. The department was again at a disadvantage as a result of its failure to provide evidence of the attempts made to source a release address. It had decided that Mr Babbage required “level 2” accommodation, which meant that he was not being treated as a high risk offender. In normal times, a target of nine days had been considered reasonable. Making due allowance for the pandemic, Soole J held that a period of one month to source accommodation (i.e. until 1 August 2020) was reasonable.
The next issue was whether the public law error, in the form of the unlawful delay in sourcing a release address after 1 August, bore upon and was relevant to the decision to continue detention. The court held that Mr Babbage would have been released if a section 4 release address had been provided by the time of a detention review on 14 August 2020. Therefore, his detention from 14 August 2020 until his release on 29 April 2021 was unlawful. Mr Babbage, like AO, was entitled to compensatory damages.
Implications for other bail accommodation cases
In order for a breach of the section 4(2) duty to render detention unlawful, the breach must bear upon and be relevant to the decision to detain. The same goes for any other statutory duty on the Home Office to provide accommodation, such as Schedule 10 of the Immigration Act 2016.
This is not a causation test, such that it must be shown that if accommodation had been available the individual would have been released. But it will likely be necessary to show that release was at least actively being considered and was a realistic possibility had accommodation been ready.
Finally, in less clear-cut cases than Mr Babbage’s, the Home Office may seek to argue that only nominal damages should be awarded. This would be on the basis that even if a release address had been available at the relevant time, detention would have been maintained.