COURT OF APPEAL ( DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Stanley Burnton
Mr Rabinder Singh, QC
London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE DYSON
| Kalaichelvan Nadarajah
- and -
Secretary of State for the Home Department
| Edward Kennedy Amirhanathan
- and -
Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ashley Underwood QC and Elisabeth Laing (instructed by Treasury Solicitor) for the Secretary of State for the Home Department
Manjit Singh Gill QC and Shivani Jegarajah (instructed by M.K. Sri & Co) for Amirthanathan
Crown Copyright ©
Lord Phillips, MR :
This is the judgment of the court.
The facts giving rise to the appeal in N
(a) the Secretary of State's decision to refuse to consider his application for asylum in this country;
(b) the Secretary of State's certificate under section 72(a) of the 1999 Act; and
(c) the decision made on 27 February 2002 to detain him.
The facts giving rise to the appeal in A
"You have asked for the reasons why your client named above has been detained. Your client's asylum application has been refused, as has his HRA claim. It is noted that you intend on his behalf to exercise his right of appeal against this decision. However, we are currently pursuing the matter of arranging a Travel Document for your client, to be used if the appeal you propose fails. To this end, he will be interviewed on 14.11.02 by an officer of the Sri Lankan High Commission. I am not satisfied in the current circumstances that he would voluntarily attend the Sri Lankan High Commission for this interview. When this is done, and the appeal your client wishes to make is set in motion by your returning the documents sent to you, further consideration will be given to the situation of your client. Please be assured that his detention will be reviewed by senior officers on a regular basis."
In a subsequent telephone conversation the Immigration Service confirmed that they were detaining A in order to facilitate an interview between A and an officer of the Sri Lankan High Commission. The object of this interview was to obtain travel documents for A's return to Sri Lanka.
"Were we to grant your client temporary admission, it would be on the basis that he attended for a documentation interview with the Sri Lankan High Commission. He has intimated to us, and you have confirmed this in your fax, that your client would refuse to speak to the Sri Lankan High Commission. You and he have stated that your client would not comply with the terms of temporary admission, and detention is the only avenue left open to us, in order to effect removal. I accept that an appeal will take place in due course, however your client has been unsuccessful in the past, failed to attend a previous interview on the 31st of October and has suggested that he will not assist in the documentation process unless compelled to do so. Maintaining detention is, in our view, therefore justified."
"Although technically removable [A] will exercise his HRA appeal. However a documentation interview with the High Commission is set for 14/11/02. We will need to review again after that interview but I think it unlikely that he will present himself for this willingly."
Statutory power to detain
16(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any paragraphs 8 to 10 or 12 or 14, that person may be detained under the authority of an immigration officer pending -
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
21(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.
(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, [as to his employment or occupation] and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.
The Secretary of State's policy in relation to detention
"Chapter 38 - Detention/Temporary Release
In the White Paper "Fairer, Faster and Firmer - A modern Approach to Immigration and Asylum" published in July 1998 the Government made it clear the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention (see 38.19 and chapter 39). The White Paper went on to say that detention would most usually be appropriate:
- to effect removal
- initially to establish a person's identity or basis of claim; or
- where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release
Use of detention
In all cases detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. However, a person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable
38.3 Factors influencing a decision to detain
1. There is a presumption in favour of temporary admission or temporary release
2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3. All reasonable alternatives to detention must be considered before detention is authorised.
4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
5. There are no statutory criteria for detention, and each case must be considered on its individual merits.
6. The following factors must be taken into account when considering the need for initial or continued detention.
- what is the likelihood of the person being removed and, if so, after what timescale?;
- is there any evidence of previous absconding?;
- is there any evidence of a previous failure to comply with conditions of temporary release or bail?;
- has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry);
- is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave, etc);
- what are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment?
- what are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?
- Is the subject under 18?
- Has the subject a history of torture?
- Has the subject a history of physical or mental ill health?"
|You are likely to abscond if given temporary admission or release.
There is insufficient reliable information to decide on whether to grant you temporary admission or release.
Your removal from the United Kingdom is imminent.
You need to be detained whilst alternative arrangements are made for your care.
Your release is not considered conducive to the public good.
This decision has been reached on the basis of the following factors (tick all boxes that apply):
You do not have enough close ties (eg. family or friends) to make it likely that you will stay in one place.
You have previously failed to comply with conditions of your stay, temporary admission or release.
You have previously absconded or escaped.
You have used or attempted to use deception in a way that leads us to consider you may continue to deceive.
You have failed to give satisfactory or reliable answers to an Immigration Officer's enquiries.
You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK.
You have previously failed or refused to leave the UK when required to do so.
You are a young person without the care of a parent or guardian.
Your health gives serious cause for concern on grounds of your well-being and/or public health or safety.
You are excluded from the UK at the personal direction of the Secretary of State.
You are detained for reasons of national security, the reasons are/will be set out in another letter.
Your unacceptable character, conduct or associations.
I consider this reasonably necessary in order to take your fingerprints because you have failed to provide them voluntarily.
"This note relates to cases in which the Home Office proposes to return an asylum claimant to a Member State of the European Union under the Dublin Convention. Particular difficulties arise in this type of case as a result of the time constraints placed on the Home Office by the terms of that Convention.
Once the relevant Member State has indicated that it is prepared to accept responsibility for consideration of the Applicant's asylum claim the Home office has one month from the date of that acceptance to transfer the asylum claimant unless, inter alia, judicial review proceedings are instituted (the commencement of proceedings stops the clock for the purpose of the time limit). Within the period of one month referred to above the receiving Member State will be setting up reception arrangements which may involve transport and accommodation.
In these circumstances it is most important that, if a judicial review application is to be instituted, it should be done quickly. Successive representations and threats of judicial review which do not materialise until the last minute cannot be easily accommodated in the context of the Dublin Convention. Therefore, having consulted the Crown Office, the Home Office wishes to indicate that it will normally require judicial review proceedings in such cases to be instituted within 5 working days of the Applicant being notified of the proposal to return him to another Member State. The Home office will not normally, in the absence of a direction by the court in a particular case, be prepared to defer removal directions where proceedings are threatened or instituted after that time."
He also referred to a gloss on this policy, described in Mr Taylor's witness statement. We shall set this out in its context when dealing with the judge's reasoning.
The Human Rights Act 1998
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
Why Stanley Burnton J held that N's detention was unlawful
"The Home office note stipulates that 5 working days be allowed from when the prospective Claimant is served with the notification of the Defendant's decision to remove him or her to the third country. This grace period of 5 days is triggered by the service of the initial decision and therefore can clearly only apply to an initial application for permission to bring a judicial challenge.
The Defendant would reasonably expect all relevant matters to be raised in the course of one judicial review application. It is, nevertheless, the Defendant's normal practice not to remove a Claimant if a second, or subsequent, judicial review application has been lodged in proper form with the Administrative Court Office. However, he takes the view that he is under no obligation to give successive 5 working day periods to permit Claimant's solicitors to make such repeat applications; nor is he constrained to cease his proper and lawful actions to remove a Claimants merely because the Claimant's solicitors have intimated their intention to lodge a further judicial challenge. Indeed, where such a serial application is, in his view, a clear abuse of process, he may decline to halt the removal in the absence of an Order or Direction from the Court. In those circumstances, he makes it clear to the Claimant's representatives (or the Claimant himself if unrepresented) that he taking that stance, and they are fully aware that a Court order is required if removal is to be halted."
"65. The restriction of the published policy to the first judicial review proceedings is reasonable: judges are only too well aware that there may be repeated unmeritorious applications for judicial review that differ little from earlier proceedings. It is also a possible interpretation of the policy; although it would be greatly preferable if the restriction were published.
66. For the same reason, I would also accept the reasonableness of a policy that normally refused to delay the return of a person whose first application for judicial review had failed unless there were a court order prohibiting his return to the third country. It would also be reasonable to refuse to delay implementation of a third country removal unless and until the Home Office had sight of the claim form and had considered it and concluded that there was an arguable case. But that is not the Home Office's policy. Mr Taylor states:
"in the event that the Claimant's solicitors had lodged a second application for JR with the Administrative Court Office then any removal directions then in place would have been cancelled. The Claimant's removal would no longer be imminent and his continued detention would, in all circumstances, no longer have been justified. This action would have been fully compliant with the guidelines set out in Chapter 38 of the Operational Enforcement Manual.
Immigration solicitors are also well aware that an application for judicial review suspends the removal of the Claimant and that it would be most unlikely that detention would be maintained throughout protracted judicial review proceedings".
67. I read this to mean that in the normal case, the institution of judicial review proceedings for the second time in a third country case will automatically lead to a suspension of removal; in which case, removal not being imminent, detention for the purposes of removal alone is not justified. This practice means that a genuine statement by the applicant's solicitors that judicial review proceedings are to be instituted is ignored, as it was in the present case."
This last sentence is not easy to understand. A little later the judge went on to hold that, "in these circumstances, N's removal was not imminent when he was detained", and that, if the Secretary of State's policy had been applied, N would not have been detained. It followed that his detention was unlawful.
Why Mr Rabinder Singh QC held that A's detention was unlawful
"My reasons are in essence the following. First the claimant's solicitors had given notice, albeit informally, that they would appeal against the decision once it was served on him. There was an indication of that as early as 1st November 2002, but it was certainly made clear on 6th November 2002 after they had learned that the claimant had in fact been detained. Secondly, it is accepted by the Secretary of State that removal was not imminent up to the point at which the decision was served on the claimant on 6th November, and also after the point at which a formal notice of appeal had been lodged. Accordingly, it is also accepted that (absent other factors) it would have been contrary to the policy to detain him before 6th November or, as I understand it, after the notice of appeal was formally lodged. That indeed appears to be consistent with what the evidence on behalf of the Home Office was, as summarised in paragraph 67 of the judgment of Stanley Burnton J in the Nadarajah. Further, it was accepted at the oral hearing before me that once an appeal had been lodged, it is inappropriate to require a person to give an interview to the authorities of the state to which he will be removed in order to facilitate the obtaining of a travel document. This is no doubt for the sound reason that such an interview might lead to information begin provided which might put the claimant or his family, who in the present case are still in Sri Lanka, at risk on the hypothesis that his appeal on human rights grounds may succeed
40 However, it is said on behalf of the Secretary of State that in the interim period removal was imminent. In my view, that is to take an excessively formalistic approach to the question, and one which is not in keeping with the spirit with which English law regards personal liberty. I have already mentioned the "jealous care" to which Lord Scarman referred in Khawaja. Thirdly, the fact is that there is always going to be some delay in lodging papers against a refusal decision. That is why a certain period is allowed for an appeal of ten working days, as it was in the present case. Even if the claimant's representatives are able to lodge the papers within a day or two, the Secretary of State's submission would mean that the claimant could be detained for that period for apparently no good reason at all. It was submitted by Ms Laing that on the facts of the present case, the immigration officer was entitled to take the view that once a refusal decision has been taken a person is more likely to "do a runner", as she put it, than before, even if they have a good record of compliance in the past. That again seems to me to invite a formalistic approach.
41. The policy to which I have referred itself recognises in a number of passages that a person who has an appeal pending is going to have an incentive to comply with conditions and so will tend not to need to be detained. If that person has already indicated that he wishes to appeal but has not yet lodged the papers, it seems to me that the same considerations are likely to apply.
42. It was also submitted by Ms Laing that the requirement that there should be a formal notice of appeal provided certainty so that immigration officers know where they stand. Certainty is, of course, a virtue in public administration; but justice is even more important. In order to avoid the risk that threats of appeals will be used in an abusive way or to string things out, it seems to me that the relatively short time limit for appealing should cater for that. It is better, in my opinion, if the state has to wait ten working days before deciding to detain a person than for a person to be detained only because he has not yet taken the formal step of lodging the notice of appeal even though he has informally given notice that he would like to appeal. Even if I were wrong about this in general, the Secretary of State appears to have no answer to the point that once the formal appeal had been lodged in 12th November 2002, the claimant should have been released even on his own understanding of his own policy. That was not done in the present case and it seems to me that the claimant was detained needlessly, in any event, for approximately three days."
"60. Applying the principles which I have identified as being relevant under the Human Rights Act and in particular the principle of proportionality, in my judgment the decision to detain the claimant in the present case was unlawful as being contrary to Article 5(1). This is essentially for the reasons I have given above in relation to domestic law. Putting it in terms more shortly of Convention language, the state has a legitimate aim of ensuring compliance with its immigration controls. However, there was on the facts of this case no reasonable relationship of proportionality between the means chosen, in other words detention, and the legitimate aim in view. This is because it was accepted that (absent other factors) the claimant should not be detained once a formal notice of appeal had been lodged. The only reason he was detained in reality was that he was theoretically removable in that short interim period when an informal notice of intention to appeal had been given, but no formal notice had yet been lodged. Having regard in particular to the principle that Convention rights should be practical and effective, not theoretical and illusory, and also to the fact that one is dealing with the bedrock principle of personal liberty, in my view that was to take an excessively formalistic approach, even giving due deference to the judgment of the executive, which I do. Accordingly, the detention of the claimant in November 2002 was unlawful under Section 6(1) of the Human Rights Act."
Contentions of the Secretary of State in respect of his policy
Contentions of the Secretary of State in relation to Article 5
Contentions of N and A in relation to the Secretary of State's policy
Contentions of N and A in relation to Article 5
"65. … . It seems to us that the [ECtHR] is considering as lawful detention pending the consideration of an application for leave to enter or the making of arrangements for deportation and not applying a test of whether the detention is necessary in order to carry out those processes. The inroad that we believe that the European Court of Human Rights has made into the right of immigration authorities to detain aliens pending consideration of their applications for leave to enter, or their deportation, is that these processes must not be unduly prolonged. It is in relation to the duration of detention that the question of proportionality arises. …"
"44. There remains the issue whether, even if detention to achieve speedy asylum decision-making does fall within Article 5(1)(f), "detention was unlawful on grounds of being a disproportionate response to the reasonable requirements of immigration control".
45. In Chahal the Court of human Rights said that the lawfulness of detention had to be seen against the substantive and procedural rules of national law "but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness". I do not see that either the methods of selection of these cases (are they suitable for speedy decision?) or the objective (speedy decision) or the way in which people are held for a short period (i.e. short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate. The evidence of Mr Martin gives strong support to the view that it was appropriate, in the light of the Secretary of State's experience, for the Secretary of State to adopt the Oakington policy and that other alternative methods would practically not be effective. "
"112. … Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5(1)(f) provides a different level of protection from Article 5(1)(c).
Indeed, all that is required under this provision is that "action is being taken with a view to deportation". It is therefore immaterial, for the purposes of Article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law."
" … Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness."
(1) What is the Secretary of State's policy?
(2) Is that policy lawful?
(3) Is that policy accessible?
(4) Having regard to the answers to the above questions, were N and A lawfully detained?
What is the Secretary of State's policy?
Is the policy lawful?
Is the policy accessible?
"the law must be adequately accessible: the citizen must have an indication which is adequate in the legal circumstances of the legal rules which are applicable to the given case"
Was N lawfully detained?
Was A's detention lawful?
1. The Secretary of State's appeal against the order of Stanley Burnton J declaring that the detention of N unlawful be dismissed.
2. N's claim for judicial review concerning his detention be transferred to the Queen's Bench Division for the damages to be assessed.
3. Secretary of State to pay N's costs
4. Detailed assessment of N's publicly funded costs
1. Secretary of State's appeal against the order of Mr Ravinder Singh QC declaring that the detention of the respondent was unlawful be dismissed.
2. The Respondent's claim for judicial review be transferred to the Queen's Bench Division of the High Court for damages to be assessed.
3. Secretary of State to pay the respondent's costs, such costs to be subject of detailed assessment if not agreed.
4. The respondent's costs to be assessed in accordance with Community Service Regulations 2002
5. Application for permission to appeal to the House of Lords refused.