In R (Babbage) v The Secretary of State for the Home Department  EWHC 2995 (Admin), the Claimant applied for judicial review, claiming that his immigration detention from 27 February 2020 to 29 April 2021 had been unlawful and/or that there was a public law error relating to the delay in the provision of s.4 accommodation. Soole J gave a potentially significant judgment concerning the ambit of the 'grace period' for locating s.4 Immigration and Asylum Act 1999 accommodation, i.e. accommodation provided to failed asylum seekers. The judge also made some apposite comments concerning the requirement for appropriate evidence in unlawful detention claims from the relevant decision maker.
The Claimant, a Zimbabwean national, was detained as Foreign National Offender and deportation proceedings pursuant to the automatic deportation provisions in the UK Borders Act 2007 were commenced. He was detained under Immigration Act powers from September 2013 until December 2015 at which point his release was ordered by the court on the basis that there was no realistic prospect of returning him to Zimbabwe. During his initial detention he made an application for asylum which was subsequently refused, and he became appeal rights expired. Following a short custodial sentence imposed on 25 September 2019, the Claimant was detained again between 22 October and 4 December 2019, following which an Emergency Travel Document was agreed in principle by the Zimbabwean Embassy, although no ETD was ever subsequently issued. On 7 February 2020, the Claimant received a short custodial sentence for breach of a community order. Upon his release he was detained again under Immigration Act powers. On 25 May 2020 the Case Progression Panel recommended the Claimant's release. On 7 April 2021 the FTT granted bail in principle subject to the provision of s.4 accommodation. The SSHD granted s.4 accommodation on 15 April but was not provided with accommodation and released until 29 April 2021.
The Claimant argued that his detention was unlawful at the very least from the point that his removal directions were cancelled on 29 March 2020 due to Covid-19 restrictions on travel into Zimbabwe. Further there was a delay in considering and granting the Claimant's application for s.1 accommodation between 1 June 2020 and 1 July 2020, and further that there had been a delay in locating accommodation within a reasonable time of its grant. There was no evidence of any attempt to chase the provider or to make an individualised request. This failure to locate appropriate accommodation bore upon the decision to detain as the absence of a suitable release address was taken into consideration in successive detention reviews as justifying continued detention.
Soole J. referred to the recent judgment of Morris J in AO v The Home Office  EWHC 1043 (QB) for his summary of the familar Hardial Singh principles, with particular reference to the provision of s.4 accomodation and the requirement for any public law error to bear upon the decision to detain. He also referred to R (Das) v SSHD  EWHC 682 (Admin) with respect to the substantial risk taken by the Home Secretary in not calling witnesses to give evidence to explain the decision making process and the reasoning behind decisions to detain. Lastly, it was noted that it was common ground in light of R (DMA and others) v SSHD  EWHC 3416 (Admin) that the Defendant has duties (i) to 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.
Conclusion – unlawful detention
Soole J. held that at every stage of the Claimant's immigration detention his historic conduct gave rise to a significant risk of absconding and re-offending. However, with regards to the 'acid test' of whether there was a realistic prospect of removal he stated at  he took particular account of five points of principle:
First, the burden on the Defendant to establish the lawfulness of the detention. Secondly, the importance of the significant risks of absconding and re-offending to the assessment of the 'reasonable period'. Thirdly, that 'As the period of detention gets longer, the greater the degree of certainty and proximity of the removal required to justify detention: R (MH). Fourthly, that 'There can be a realistic prospect of removal without it being possible to specify or predict the day by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all: R (Muqtaar). Fifthly, the duty on the Defendant to make candid disclosure of the relevant facts and (so far as not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decisions challenged: R (Das).
He stated that it was a particular disadvantage to have no witness evidence from any of the relevant decision makers, particularly concerning the effect of Covid-19 on effecting removals to Zimbabwe and as to the steps taken by the Home Secretary to locate s.4 accommodation. Consequently he held at  that:
The Court has therefore been left in the position of having to study the contemporaneous documents, in particular the detention reviews, and interpret them as best as can be done. Whilst I see some potential force in Mr Lewis' point about the number of cases handled by individual officers, I do not accept (and certainly without evidence, rather than assertion) that it necessarily follows that no useful commentary or clarification could be given by the individual decision-makers.
Soole J. concluded that the Claimant's detention had been unlawful from 18 September 2020 – by this point the Claimant was identified as a Level 2 Adult at Risk, the Zimbabwean Embassy in London was closed, there was further advice from the British Embassy in Harare against conducting enforced returns, and there was continued absence of section 4 accommodation. Accordingly, there was no realistic prospect of removal within a reasonable period. He noted at  that "I reach this conclusion on the assumption that there had been no public law error in respect of s.4 accommodation. Given the significant risks of absconding and re-offending, in my judgment the issue of whether such accommodation should have been obtained falls for separate consideration."
With regards to s.4 accommodation, Soole J. held that he was satisfied the period of one month to consider the application in June 2020 was reasonable in the circumstances, which included Covid. With regards to the delay in locating the accommodation, a reasonable time to locate accommodation in the circumstances of Covid was a further month. Thereafter the failure to source accommodation by that time bore on the decision to detain, in the sense that it was capable of affecting the decision on whether to continue the detention of the Claimant. Accordingly, the decision on 14 August to continue detention was vitiated by public law error. In the absence of such error the Home Secretary could not have lawfully detained the Claimant and had put forward no evidence to the effect that detention would have continued in any event. On the contrary, it was clear that the Claimant would have been released. Accordingly the Claimant was entitled to substantial (as opposed to nominal) damages for detention resulting from that public law error.
This judgment illustrates the highly fact specific nature of every unlawful detention claim, but also the difficulty of applying the tried and tested Hardial Singh principles to the novel circumstances of Covid – and reinforces the extent to which the court wishes relevant evidence considering the precise decisions taken and the particular impact of Covid at any point. The grace period of one month allowed for the location of s.4 accommodation is in keeping, and arguably at the more generous end, of other recent similar decisions.