11 January 2011

FOURTH SECTION
Application no. 48078/09
by Mohammed Hussein ISMAIL
against the United Kingdom
lodged on 4 September 2009

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Mohammed Hussein Ismail, is an Iraqi national who was born in 1983 and lives in Ipswich. He is represented before the Court by J. Hickman, Solicitor at the Public Law Project, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 November 2006 the applicant was detained under powers contained in the Immigration Act 1971 on the basis that he was subject to a decision to make a deportation order. He had previously been detained for six months while serving a sentence of one year’s imprisonment for the offence of being in possession of a false instrument.
On 22 March 2007 the applicant applied for bail. Bail was refused on the basis that the Immigration Judge was satisfied that there were substantial grounds for believing that the applicant would abscond. In addition, the bail application was said to be premature as the applicant’s appeal against the decision to make a deportation order had not yet been determined.
On 27 March 2007 the applicant’s appeal against the decision to make a deportation order was dismissed by the Asylum and Immigration Tribunal (AIT) following a hearing.
On 18 April 2007 an application for reconsideration was refused.
On 26 April 2007 a deportation order was issued. The applicant was subsequently detained on the basis that he was subject to a deportation order.
On 10 July 2007 the applicant applied for bail for a second time and requested a bail hearing within three working days, relying on the AIT Practice Direction (see relevant domestic law and practice below). However, the applicant’s representatives were informed that the bail application would not be listed before the week commencing 23 July 2007.
On 12 July 2007 the applicant’s solicitors wrote a letter before claim arguing that the failure to list the applicant’s bail application in accordance with the relevant Practice Direction was a violation of his rights under Article 5 § 4 of the Convention. No response was received.
On 13 July 2007 the applicant’s solicitors were informed that his bail application would be listed for 20 July 2007. No explanation was provided for the delay in listing the applicant’s case.
On 16 July 2007 the applicant commenced judicial review proceedings.
On 20 July 2007 the applicant was granted bail.
Following the applicant’s commencement of judicial review proceedings, the AIT filed summary grounds arguing that Article 5 § 4 of the Convention had no application when an immigration detainee applied for bail.
On 23 October 2007 Lloyd Jones J refused permission to apply for judicial review on the papers. In finding that the application did not disclose any arguable grounds for judicial review, he took the view that Article 5 § 4 of the Convention had “no application because an application for bail does not determine the lawfulness of the detention.” Reference was made to the case of R (Konan) v SSHD [2004] EWHC 22.
The applicant renewed his application for permission to apply for judicial review. In a judgment delivered on 14 July 2008 Sullivan J refused permission, stating that he was:
“in principle...perfectly happy to accept that interesting arguments may well arise as to whether or not Article 5 § 4 does or does not apply to bail applications, even on the hypothesis that there is good argument that it does, the question (was) whether permission to apply for judicial review should be granted on the facts of this case.”
Sullivan J observed that within eight working days of the applicant’s second application, he was granted bail. Though it was clearly in excess of the three working days cited in the Practice Direction, the latter recognised that it may not be practicable to list a hearing within three working days.
Moreover, although there was some indication in the papers that this might not be an isolated case, there was no satisfactory evidence that the problem was in any way a widespread one. Simply looking at the facts of the present case, and even assuming that Article 5 § 4 of the Convention applied and that there was an entitlement to have one’s bail application heard speedily, if the overall period fell to be measured in working days rather than weeks or months, it was very difficult to maintain any argument that the application was not being heard speedily. The three working days referred to in the Practice Direction was patently a guideline and one which recognised that in practice it could take longer to arrange for a bail hearing. In light of the foregoing, it would be:
“quite disproportionate, given that (the) applicant did have his application for bail heard within eight working days, to grant him permission for judicial review to enable a lengthy trawl through the authorities in order to ascertain whether or not Article 5 § 4 would have been of assistance in his case...it would on the facts of this case be a completely disproportionate use of the court’s time”
The applicant sought permission to appeal. On 8 January 2009 permission was refused on paper by Buxton LJ. He considered that once it was conceded, as it was in the applicant’s skeleton argument, that bail applications did not determine the legality of continuing detention, it was very difficult to hold that Article 5 § 4 could have any application. However, even if the application of Article 5 § 4 was more arguable than it appeared to be, Sullivan J’s reasons for not permitting the case to proceed were unanswerable, or, at least did not “give (the) court licence to differ from the assessment of a judge exercising the discretionary jurisdiction of the Administrative Court.”
The applicant renewed his application for permission to appeal. Permission was refused by Thomas LJ on 9 March 2009. Thomas LJ stated that he was inclined to take the view that Article 5 § 4 of the Convention was not engaged for the reasons given by Buxton LJ when refusing the applicant permission to appeal. Notwithstanding, he considered that Sullivan J was entitled to conclude that it was not really arguable that the listing of the applicant’s bail application had not been “speedy” for the purposes of Article 5 § 4. It was, in Thomas’ LJ opinion, important to take into consideration the fact that the courts were subject to extreme resource pressures, particularly “in the middle of a current economic crisis.” Delays of greater duration, such as those measured in weeks or months would, by contrast, be a matter of concern.
B.  Relevant domestic law and practice
Paragraph 19.1 of the Practice Direction issued by the Asylum and Immigration Tribunal in force at the relevant time provided that:
“An application for bail shall if practicable be listed for hearing within three working days of receipt by the Tribunal of the notice of application.”

Section 107 (1) of the Nationality, Immigration and Asylum Act 2002 provided the following in respect of the President of the Asylum and Immigration Tribunal:

“The President of the Tribunal may give directions as to the practice to be followed by the Tribunal.”

In the case of R (Konan) v SSHD [2004] EWHC 22, the High Court held the following at paragraph 30 of its judgment:
“...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. Further, the requirement imposed by Article 5(4) of the E.C.H.R. that a detainee must be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court is not met by a right to seek bail. In Zamir v United Kingdom (1983) 40 D.R. 42 at 59 (Paragraph 109) the Commission said: ... this right must be seen as independent of the possibility of applying to a court for release on bail.”
COMPLAINTS
The applicant complains under Article 5 § 4 of the Convention that his second bail application was not decided “speedily,” or in accordance with the relevant domestic Practice Direction and that the authorities failed to give good reason for the delay.
He further complains under Article 13 of the Convention that he was deprived of an effective domestic remedy as the courts failed to consider the merits of his claim, finding that it would be a disproportionate use of the court’s time.

QUESTIONS TO THE PARTIES

1.  Did Article 5 § 4 of the Convention apply to the applicant’s application for bail on 10 July 2007?

2.  If so, were the proceedings sufficiently “speedy” within the meaning of Article 5 § 4 of the Convention?