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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nyamwaya, R (On the Application Of) v Secretary of State for the Home Department & Anor [2016] EWHC 3057 (Admin) (09 November 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/3057.html Cite as: [2016] EWHC 3057 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		9 November 2016

1. THE DEPUTY JUDGE: Earlier this morning, in the absence of the claimant, I gave a provisional ruling striking out the claims, but, realising that he might have been delayed for some reason, I indicated that I would reconsider the matter at any time up until 2 o'clock. In fact the claimant did attend this morning and the case has been reconsidered on its merits after hearing from the claimant.
2. It is agreed on all sides that it cannot be heard and determined immediately, partly because the claimant has not seen the very extensive bundles of documents in their latest form, although he will have seen some of the component parts during the course of the case, but also because the claimant believes that he needs further disclosure, and that can only be set out in detail and decided once he has had the opportunity to see what documents are in the bundles.
3. It is therefore accepted that, to the extent that it is relevant, this claim should now be transferred to the County Court. I say "accepted" because although the claimant had initially asked for it to be retained in the High Court and to be heard by me at a later date, I indicated that that was not an opportunity that I could afford him, given that he had now been released from detention, the matter was suitable for transfer to the County Court, and it should in principle be heard at the lowest appropriate level.
4. Let me briefly revisit the position that I set out in the earlier ruling. The claimant has made claims for judicial review, habeas corpus, and an application for bail. On 28 July of this year, when the claimant was still detained, Stuart Smith J, on an oral renewed application for permission, granted that permission on a restricted basis. Permission was granted only for the application for a declaration of unlawful detention and damages or compensation for that unlawful detention; secondly, for an injunction against removal; and thirdly for an order for immediate release. Hand in hand with that last element of the judicial review application, the application for habeas corpus was also adjourned to the substantive hearing. Permission was otherwise refused, unless that decision were reversed by the court at the substantive hearing. The claimant's applications, then outstanding, to amend his claims were dismissed.
5. On 2 November 2016, the claimant was released from detention. An inevitable result of that is that the claims for immediate release and for habeas corpus are now academic and cannot be pursued further. That is not to say that they were improperly brought at the start -- that is a matter that depends upon the assessment of the lawfulness or unlawfulness of detention -- but they are not needed any longer as a freestanding head of claim.
6. The injunction against removal is, it seems to me, in a slightly different but linked position. Insofar as it was sought to restrain the defendant from removing the claimant whilst he was in detention, it is the other side of the coin of the application for habeas corpus or immediate release. The current release from detention, albeit on terms, makes it clear that there is now no immediate threat of removal. No injunction against immediate removal is therefore now required.
7. It would be impossible for any court to make a permanent injunction against removal at any time on any basis because there may be a change of factual circumstances which could justify a future attempt to remove. Such circumstances, if they ever exist, would have to be assessed for reasonableness at the time by careful scrutiny of the facts then apparent. No court, therefore, is going to make a permanent injunction at this stage.
8. For those reasons, it is clear that those elements of the permission have fallen aside, and the only remaining issue on which permission has been granted is whether all or any part of the claimant's detention under immigration powers was unlawful. That detention was for three separate periods: firstly between 12 May 2011 and 29 April 2014, a period of almost three years; secondly between 26 January and 18 March 2015, a period of 51 days; and finally between 5 July 2015 and 2 November 2016, a period of almost 16 months.
9. I should add this: the claimant has made a succession of complaints about his treatment whilst in prison. As I read the order made by Stuart Smith J, permission was refused in relation to those, so that the evidence is not relevant unless it could affect the lawfulness of detention. It seems to me clear on authority that such complaints cannot themselves render detention unlawful. The decision of the House of Lords in R v Deputy Governor of Parkhurst Prison, ex parte Hague, Weldon v Home Office [1992] 1 AC 58 is the authority for this. The reason is that unlawful detention is an unlawful deprivation of liberty. If a person is initially lawfully detained, he has no liberty to be removed, and ill treatment cannot therefore amount to an unlawful removal of liberty.
10. As I have indicated to the claimant, such complaints can be dealt with in a number of ways: within the Prison Rules, through the Prison Ombudsman, or by a separate private law action in the County Court, but they do not amount to a public law cause of action. Insofar as extreme ill treatment might do so, there is no arguable case that it arises here, and permission has been refused in relation to that.
11. So all that remains, though it is a very important claim, is the claim for unlawful detention during any or all of those three periods that I have mentioned. That claim I now transfer to the Central London County Court for hearing and disposal.
12. Once the claimant has had a chance to look at and digest the documents that have been produced in bundles for this hearing, he may, hopefully with the assistance of some legal advice, wish to make an application for specific disclosure if there are documents which are clearly and sufficiently relevant that they should be disclosed and have not been. He has at present raised two possibilities, firstly a file in relation to what he calls his application for citizenship in June 2011, in respect of which he says he included his birth certificate and those of his parents, and secondly the file relating to the determination of his Article 8 claim in 2012. Whether those descriptions are entirely accurate remains to be seen once he has had an opportunity to study the documents in the bundles.
13. I make no order in relation to such disclosure, firstly because the documents may already be in the bundles; secondly because, having read the bundles, the claimant may be able to be more specific about dates and details so as to focus any application and order; and thirdly because it is only once those details are provided that the relevance and need for such an order can be properly considered and decided by a judge. So that will be a matter for the claimant, if he chooses, to make a separate application in the proceedings to the County Court once the transfer has taken effect.
14. When it appeared that the claimant had not attended the hearing, I provisionally made an order for costs in favour of the first defendant. That order clearly is now premature and will not be part of the final order in this case. The issue of costs between the claimant and the first defendant will need to be determined following the determination of the issue of unlawful detention.
15. The second defendant is the governor of Her Majesty's Prison Wandsworth and only remains in the proceedings because of the habeas corpus claim. Since that now falls away, there is no need for the governor to remain a party to the part of the proceedings which are transferred to the County Court, and I will make the order to discharge the second defendant as a party to these proceedings. That will be effective save for two elements. Firstly, the evidence which has already been filed on behalf of the second defendant should be available, if it is relevant, to be used by either the claimant or the first defendant in the final hearing. Secondly, any issues of costs between the claimant and the second defendant will have to be decided at the conclusion of the claim against the first defendant for unlawful detention, because the reasonableness of including the second defendant as a party in relation to the claim for habeas corpus can only be judged when the lawfulness of the continuing detention has been judged, so I say nothing further about costs there but leave it to the County Court judge to decide.
16. I trust that this ex tempore ruling is sufficient to make clear the limits of what is transferred, but let me for the avoidance of doubt say this: there have through these proceedings been a large number of applications by the claimant for orders of one sort or another, and I can understand why he has made them, but at this stage it is important to be able to draw a line under matters and, whilst not starting afresh, start with a relatively clean sheet. I therefore make it clear that any outstanding applications or claims are to be treated as dismissed on transfer, so that if there is anything the claimant thinks is necessary to determine the issue of his unlawful detention in the County Court hearing, he must make a fresh application to the County Court and not rely on earlier applications to this court.
17. THE DEPUTY JUDGE: I hope that is sufficiently clear, does that cover everything?
18. MR IRWIN: I think so, yes, my Lord.
19. THE DEPUTY JUDGE (to the claimant): Do you understand enough? That should be transcribed, I will make an order that that be transcribed and copies provided to all parties and to the County Court on transfer.
20. Please, please, please just talk to people here, find out where the office is in this huge building, that will give you some free advice on where you are. Try and get some legal assistance, whether it is under legal aid or in any other way, I cannot advise you in detail on that, but I do advise you it would be better if you can get some legal advice, and concentrate on the area that I have indicated is to be transferred to the County Court.
21. Thank you very much.