COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE LONGMORE
| SK (ZIMBABWE)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Robin Tam QC and Mr Martin Chamberlain (instructed by The Treasury Solicitor) for the Respondent/Cross Appellant
Hearing dates : 28 July 2008
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Lord Justice Laws:
"Where notice has been given to a person in accordance with regulations under Schedule 18 to this Act of a decision to make a deportation order against him… he may be detained under the authority of the Secretary of State pending the making of the deportation order."
The letter giving the relevant authority under paragraph 2(2) shows that the basis of the decision to detain was that the claimant was an unlawful overstayer who was likely to abscond if released.
SUBMISSIONS BEFORE MUNBY J
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained… pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."
"(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) the deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal."
"Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly."
The Rules are supplemented by Chapter 38 of the Manual which contains these following provisions. First, paragraph 38.1 states in part:
"To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy."
Paragraph 38.3 contains these sub-paragraphs:
"1. There is a presumption in favour of temporary admission or temporary release.
4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified."
Paragraph 38.5 provides:
"Although the power in law to detain an illegal entrant rests with the IO [sc. Immigration Officer], or the relevant non-warranted immigration case worker under the authority of the Secretary of State, in practice, an officer of at least CIO [sc. Chief Immigration Officer] rank, or a senior case worker, must give authority. Detention must then be reviewed at regular intervals (see 38.8)."
Paragraph 38.6 states in part:
"The Government stated in the 1998 White Paper that written reasons for detention should be given in all cases at the time of detention and thereafter at monthly intervals." (emphasis in original)
Paragraph 38.6.3 provides in part:
"It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure that they are always justified and correctly stated. A copy of the form must be retained on the case working file." (emphasis in original)
"... Continued detention… must be subject to administrative review at regular intervals. At each review robust and formally documented consideration should be given to the removability of the detainee.
… A formal and documented review of the detention should be made after 24 hours by an Inspector and therefore as directed at the 7, 14, 21 and 28 day points.
At the 14 day stage, or if circumstances change between weekly reviews an Inspector must conduct the review. (emphasis in original)
… In CCD [sc. the Criminal Casework Directorate] an HEO [sc. Higher Executive Officer] reviews detention up to 2 months. An SEO/HMI [sc. Senior Executive Officer/Her Majesty's Inspector] reviews detention up to 4 months, the Assistant Director/Grade 7 up to 8 months, the Deputy Director up to 11 months, and the Director at 12 months and over."
THE JUDGE'S FINDINGS CONCERNING REVIEWS UNDER THE RULES AND MANUAL
"39. So, following the 28 day review on 6 April 2006, there should have been monthly reviews in each of the remaining 9 months in 2006, in each of the 12 months in 2007 and, finally, on 6 January 2008. Leaving on one side the reviews which should have taken place between 10 and 30 March 2006, there should therefore, in all, have been 22 monthly reviews, the first on 6 April 2006 and the most recent on 6 January 2008. In accordance with paragraph 38.8 of the [Manual], the first two of these (April and May 2006) could be carried out by an HEO. The next two (June and July 2006) should have been carried out by an SEO/HMI, the next four (August – November 2006) by the Assistant Director/Grade 7, the next three (December 2006 – February 2007) by the Deputy Director and the most recent eleven (March 2007 – January 2008) by the Director.
40. The disgraceful fact is that in the whole period from 9 March 2006 to the hearing on 18 January 2008 there were only ten reviews, only six of which (those in January, May, July, August and October 2007 and in January 2008) were conducted by an official at the correct level of seniority. Even worse, the first review did not take place until late January 2007. So there was no review at all during the first ten months of SK's detention!"
"47. … It is astonishing that an official as senior as the Director should seemingly be ignorant of current Home Office policy on a matter as significant as this. It is also disturbing that decision-making exhibiting this degree of ineptitude should be taking place in relation to an individual at the very time that the legality of his detention was under scrutiny by the court."
The judge continued:
"48. So a man who, according to the Secretary of State's own publicly proclaimed policy – a policy which moreover, as we have seen, proclaims that a detention to be lawful 'must' accord with this policy – was entitled to no fewer than 22 monthly reviews of the lawfulness of his detention has had the benefit of only ten reviews, of which only six were conducted by officials of the requisite seniority. And of these six, Mr Chamberlain [counsel for the Secretary of State] has had to disavow two as fatally flawed.
49. So SK has had only four of the 22 reviews to which he was entitled. And on top of this, with the sole exception of the 'Monthly Progress Report to Detainees' dated 24 May 2007, every 'Monthly Progress Report to Detainees' sent to SK seems to have pre-dated the actual decision. The casual mendacity of a system under which the written reasons for detention required by rule 9(1) of the Detention Centre Rules 2001 to be sent to detainees are dated and signed by junior officials before the decisions have in fact been taken is concerning. To be specific, and by way of example (there are too many others): the 'Monthly Progress Report' which SK received dated 15 August 2007 would plainly have conveyed to him that his continuing detention had been reviewed and approved by the Director on or shortly before 15 August 2007. In fact, as we know, the actual decision was not taken until 30 August 2007. So the document SK received was wholly misleading.
50 . Thus the allegation made on behalf of the Secretary of State, not just in the letter of 9 November 2007 but persisted in as recently as in the detailed grounds of defence dated 14 December 2007, that SK's detention has been 'regularly reviewed' is at best tendentious. How such an assertion could be made in the light of what Mr Goodman correctly characterises as the Secretary of State's blatant failure to follow her own policy in relation to review I do not begin to understand..."
THE JUDGE'S CONCLUSIONS
"96. In my judgment it was entirely rational and lawful for the Secretary of State to attach very considerable weight indeed to the combined effect of these two facts – facts as the Secretary of State was entitled to find and facts as I find them to be: that there was and is a substantial risk of SK absconding coupled with his continuing and adamant refusal to accept voluntary repatriation.
97. On all these grounds I agree with Mr Chamberlain that there is no substance in Mr Goodman's attack insofar as it is based on Hardial Singh principle (i)."
As for proposition (ii) (the reasonableness of the length of detention) he said:
"109. ... I think a weighty factor that has to be built into any evaluation of the reasonableness of the overall time that SK has spent in detention is the fact that during the greater part of that time he was vigorously pursuing through the appellate system both what in common with two Immigration Judges I agree was a transparently fabricated asylum claim and also an appeal against the deportation order which was probably always little short of hopeless.
110. In all the circumstances I do not think that there has yet come to an end what is in all the circumstances a reasonable period during which SK can continue properly to be detained.
111. That said, I cannot help thinking that it will not be too long before SK will be able to say that it is no longer reasonable to keep him in detention. The Secretary of State will have to keep the matter under review."
The challenge on propositions (iii) and (iv) also failed: paragraphs 117 and 120, which with respect I need not set out.
"62. Mr Goodman says that it is clear as a matter of principle, and if authority be needed it is clear in the light of these authorities, that SK's detention was therefore lawful only during such periods as it had been authorised by a person of appropriate seniority in accordance with paragraph 38.8 of the Operations Enforcement Manual. In the circumstances as I have set them out above, this means, says Mr Goodman, that, quite apart from any other arguments upon which he relies, SK's detention has been unlawful at all times since 10 March 2006 with the sole exception of (i) the period of one month from 20 January 2007, (ii) the period of one month from 22 May 2007; (iii) the period from 2-30 August 2007; and (iv) the period of one month from 30 August 2007. I agree."
"68. Integral to the scheme endorsed by Parliament in its approval of rule 9(1) of the Detention Centre Rules 2001, and integral to the policy laid down by the Secretary of State in paragraph 38.8 of the Operations Enforcement Manual, is the principle that someone is not to be detained beyond a certain period without there being a review undertaken at regular intervals and moreover, as required by the Secretary of State's policy, a review undertaken at increasingly high levels of seniority within the Home Office as the period of detention grows longer. Those reviews are fundamental to the propriety of the continuing detention, they are required in order to ensure that the continuing detention can still be justified in the light of current, and perhaps changed, circumstances, and they are, in my judgment, a necessary prerequisite to the continuing legality of the detention."
THE ISSUE IN THIS COURT
THE TRUE CONSTRUCTION OF PARAGRAPH 2(2): ROBERTS  1 WLR 662
"A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act."
S.40 of PACE fell within "the provisions of this Part of this Act" (Part IV). It required reviews of the detention of persons in police custody at stated intervals. The requirement was not fulfilled. Clarke LJ as he then was said (at 667):
"Mr Benson submits that, so long as circumstances existed which were or would be sufficient to justify continued detention, the respondent could not be fairly be said to be detained without lawful excuse. I am, however, unable to accept that submission. From 5.25am the respondent was not being detained in accordance with Part IV of the 1984 Act because no review was carried out as required by section 40(1) and (3)(a). As I see it, it is nothing to the point to say that the detention would have been lawful if a review had been carried out or that there were grounds which would have justified continued detention. Part IV of the Act exists in order to ensure that members of the public are not detained save in certain defined circumstances. In all other circumstances every member of the public is entitled to his or her liberty...
In this case the respondent was entitled to the benefit of a review before 5.25am. In the absence of a review he was in principle entitled to his liberty. His further detention was therefore unlawful. In short he was being deprived of his liberty without lawful excuse. It follows that this was a case of false imprisonment..."
THE TRUE CONSTRUCTION OF PARAGRAPH 2(2): THE AVOIDANCE OF ARBITRARY DETENTION
"The Court for its part considers that the words 'in accordance with a procedure prescribed by law' essentially refer back to domestic law; they state the need for compliance with the relevant procedure under that law. However, the domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein. The notion underlying the term in question is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary."
"... [T]he relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary. Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act and the Secretary of State's published policy, which, under principles of public law, he is obliged to follow."
"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."
As it happens a detainee in the present context may not only seek judicial review in relation to his detention but also enjoys a statutory right under the immigration legislation to apply for bail: the claimant has had recourse to both.
THE TRUE CONSTRUCTION OF PARAGRAPH 2(2): MANDATORY MONITORING PROCEDURES?
"... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
In Munjaz  2 AC 148 the House of Lords was concerned with a Code of Practice published by the Secretary of State containing guidance for hospitals and medical staff on the use of seclusion for detained psychiatric patients. One of the issues was whether seclusion involved a violation of the patient's right to respect for his private and family life under ECHR Article 8. Lord Bingham dealt with one particular argument as follows:
"34. Mr Gordon, on behalf of Mind, submits that the interference is not 'in accordance with the law' because not prescribed by a binding general law. I cannot for my part accept this. The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied..."
The words "in accordance with the law" appear, of course, in Article 8(2). Plainly the language of Article 5(1) – "in accordance with a procedure prescribed by law" – is not the same, but the two provisions impose, I think, kindred requirements: "to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules". Here the "rules" are the Hardial Singh principles. Their fulfilment in any given case saves a detention from the vice of arbitrariness. A system of regular monitoring is, no doubt, a highly desirable means of seeing that the principles are indeed fulfilled. But it is not itself one of those principles. The words in Article 5(1) "in accordance with a procedure prescribed by law" no doubt require appropriate formalities, so that any order for detention "should issue from and be executed by an appropriate authority" (as it was put in Winterwerp); and they certainly prohibit arbitrary action. But they do not necessarily require the imposition of any specific system of internal mechanics as the means of avoiding it.
"It is common ground that the fact that D and K were wrongfully denied a medical examination within 24 hours of admission contrary to Rule 34 does not of itself mean that they were wrongfully detained. It is common ground that it is for each of D and K to show that had they received (as they should) such examination within 24 hours then they would have been released at an earlier time than in fact they were..."
In Saadi  1 WLR 3131 the claimants were Turkish Kurd asylum-seekers who challenged their detention. The Manual (that is, the Manual we are concerned with in these proceedings) required by paragraph 38.5.2 that each detainee be given a "Reasons for Detention" form. The forms given to the claimants contained wrong or inappropriate reasons. Lord Slynn of Hadley stated at paragraph 48:
"It is agreed that the forms served on the claimants here were inappropriate. It was, to say the least, unfortunate but without going as far as Collins J in his criticism of the Immigration Service, I agree with him that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention."
THE TRUE CONSTRUCTION OF PARAGRAPH 2(2): CONCLUSIONS
i) Compliance with the Rules and Manual as such is not a condition precedent to a lawful detention pursuant to paragraph 2(2). Statute does not make it so (contrast s.34(1) of PACE, and the case of Roberts  1 WLR 662). Nor does the common law, or the law of the ECHR.
ii) Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) requires that in every case the Hardial Singh principles should be complied with.
iii) It is elementary that the power's exercise, being an act of the executive, is subject to the control of the courts, principally by way of judicial review. So much is also required by ECHR Article 5(4). The focus of judicial supervision in the particular context is upon the vindication of the Hardial Singh principles.
iv) In the event of a legal challenge in any particular case the Secretary of State must be in a position to demonstrate by evidence that those principles have been and are being fulfilled. However the law does not prescribe the form of such evidence. Compliance with the Rules and the Manual would be an effective and practical means of doing so. It is anyway the Secretary of State's duty so to comply. It is firmly to be expected that hereafter that will be conscientiously done.
THE FACTS REVISITED
"I confess to being not very impressed with the quality of the analysis revealed by the file which has now been disclosed. But I do not think that such shortcomings as there may be are sufficiently grave as to give rise to any independent ground of complaint. The decision-making was adequate if unimpressive."
POSTSCRIPT: THE CLAIMANT'S NEW POINT
Lord Justice Keene:
"among other things, make provision with respect to the safety, care, activities, discipline and control of detained persons."
None of those parent provisions seems to intend that the rules made under them should curtail or limit the Secretary of State's power to detain as such.
Lord Justice Longmore: