Kalah, R (On the Application Of) v Secretary of State for the Home Department

Where a public authority has failed to comply with court orders and seeks permission to participate in an unlawful detention claim, the court must consider the interests of justice, the public interest and the overriding objective. Refusing participation does not automatically result in judgment in default. The court must still determine whether detention was unlawful, and the authority’s assistance may be necessary for a fair assessment of a lengthy and fact-sensitive detention period. Permission may therefore be granted, while the authority’s procedural failures may be marked through costs orders, expedited transcription and referral to the relevant public body.

Two judicial review claims were before the Administrative Court. One challenged detention pending deportation between 24 August 2014 and 7 June 2017. The other concerned removal, further representations and the refusal to treat those representations as a fresh claim or revoke the deportation order.

The Secretary of State had repeatedly failed to comply with court orders and procedural directions in the detention claim. She sought permission to participate in its hearing. The court also considered whether the detention claim should be adjourned and transferred to the County Court.

1. The Secretary of State was permitted to participate in the unlawful detention claim. A refusal of permission would not constitute judgment in default. The court would still have to determine whether all or part of the nearly three-year detention period was unlawful, and would be assisted by the Secretary of State’s analysis of the relevant documents.
2. In applying the interests of justice, the public interest and the overriding objective, the court adopted by analogy the reasoning in R (On the application of Ademiluyi) v Secretary of State for the Home Department, [2017] EWHC (Admin) 935. The changing facts relevant to prospects of removal made participation particularly useful.
3. The court expressly disapproved the Secretary of State’s repeated failures to comply with court rules, orders and directions. The judgment was to be expedited at the Secretary of State’s expense and sent to the Home Office. The detention court could take that conduct into account when determining final costs.
4. The unlawful detention claim was adjourned because the claimant had received the Secretary of State’s documents only shortly before the hearing. It was transferred to the County Court. Existing bundles were to be used, further disclosure was ordered within seven days, and a case management conference was to be listed after judgment in the fresh claim challenge. The Secretary of State was ordered to pay the costs thrown away by the adjournment on an indemnity basis, without set-off against future costs.