ON APPEAL FROM
Sir Thayne Forbes (sitting in the High Court) on 1st March 2010
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEVESON
LORD JUSTICE PITCHFORD
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Rory Dunlop (instructed by Treasury Solicitors) for the Respondent
Hearing date: 29th March 2011
Crown Copyright ©
Lord Justice Pitchford :
Detention 7 December to 22 December 2008
"... an immigration enforcement [visit] was made to the home address of the family on Sunday 7 December 2008. The subject and her children were detained under the Immigration Act 1971 pending their removal to Uganda on 11/12/08. The family were generally in good health. [FM] suffered from mild depression, stomach ulcers and migraines. There were no apparent compassionate factors as to why detention and removal could not proceed. In summary detention is necessary to effect removal.
Furthermore, she has previously shown that she is willing to employ deception to evade the UK immigration authorities and there is a risk that she may do so again. It is highly unlikely that the subject will comply with self-check in [sic] removal directions. Detention is furthermore compliant with Article 5(1)(f) European Convention on Human Rights."
The appellant was served with a notice (AB/453) informing her that the reason for her detention was that "your removal from the United Kingdom is imminent". She was informed that additional factors comprised the absence of close ties, the use of deception, failure to give satisfactory or reliable answers to an immigration officer's enquiries and failure to produce satisfactory evidence of her identity, nationality or lawful basis to be in the United Kingdom. The last three of these factors all related to the deception exercised on arrival in the UK.
"I have been instructed by my client that she and her children are ready and willing to undertake the malaria prophylaxis. She also requests that she be provided with sufficient anti-malarial medication to last her and her children for at least 2 months should she be returned ..."
The Article 8 representations were supported by a statement dated 10 December 2008 (AB/559) in which the appellant claimed that although A-J's father had returned to London they had kept regularly in touch; he had visited her on many occasions; and she spoke to him on the telephone several times a day. These assertions were completely contrary to the appellant's account given to the case worker on 3 November 2008 just over a month before (see paragraph 3 above). The fresh representations were supported by a statement from the father (AB/562). He said that he had a daughter by another woman in the United Kingdom whom he visited 2 or 3 times a week. He too claimed that he had visited the appellant on several occasions since the birth of their son and spoke to the appellant several times a day.
"Both of these children weigh under 11 kg, therefore Malarone is not licensed for use as a malaria prophylaxis. There is no alternative that can be used if RDs [removal directions] are tomorrow due to the length of time needed for the drug to be effective. Hence we have not been able to issue malaria prophylaxis at this time."
"...Health Care at Yarl's Wood have confirmed that they cannot give the children Malarone as they are underweight for that particular drug. I consider that detainees are made aware of the availability of prophylaxis when they first enter detention. I also consider that your client will have seen a nurse when she first arrived and has had twenty four hour access to a doctor while in detention. As it has been an option for your client since entering detention and considering sections 5.3 – 5.5 in the IDIs I consider that removal remains appropriate in this instance. You have provided no evidence from a doctor to show that it has been deemed necessary that your client's children have prophylaxis and I also consider that the UK Border Agency have acted appropriately and according to our published policy in this regard."
"Her low mood is causing her to be forgetful & neglectful of her children's needs. At present this situation is being closely monitored and [MF] is receiving support from the local Sure Start."
A claim for judicial review was issued and notified to UKBA on the evening of 11 December (AB/574). Further representations were made supporting the appellant's application for release from detention.
"(1) Your client is likely to abscond if given temporary admission or release.
(2) Your client does not have enough close ties, (e.g. family or friends) to make it likely that they will stay in one place.
(3) On initial consideration it appears that your client's application may be one which can be decided quickly.
(4) Your client has used, or attempted to use deception in a way that leads us to consider your client may continue to deceive.
(5) Your client has not produced satisfactory evidence of your client's identity, nationality or lawful basis to be in the UK."
"10 Day review – Time scale for dealing with JR awaited. I agree to maintain detention at least until it is known the JR is to be expedited. Yarl's Wood are aware of our concerns relating to Ms [FM] and her telephone call to the case owner on 15/12."
"I find that the applicant comes within one or more of the restrictions on the grant of bail contained in paragraph 30(2) of the Second Schedule to the Immigration Act 1971, namely: ...the applicant is suffering from a mental disorder and continued detention is needed in his [sic] interests or for the protection of others ...and it is not appropriate to grant bail for that reason."
Release 23 December 2008
"It is considered, with reference to IDI 5.5, removal should not be delayed once new removal directions are in place for your client. Yarlswood have a medical centre by the name of Serco whose clinical nurse consultants are qualified to prescribe the correct dosage of Malaria Prophylaxis to your client's children dependent on the age and weight..."
The author maintained the stance previously taken on 11 December 2008 (that RLC had provided no evidence that the children required prophylaxis) but set out the British National Formulary for Children which advised incubation periods of between 1 – 2 days and 2.5 weeks depending upon the prescription deemed appropriate. As to the appellant's medical condition, it was concluded that upon return to Uganda she would have access to medication for the treatment of her reactive depression.
Detention 17 February to 12 March 2009
"In the circumstances please defer the removal direction and arrange for them to be re-set after obtaining confirmation that the family are fit to travel and that they are immune from catching malaria on their arrival in Uganda."
Removal directions were re-set for 2 March 2009.
The Power of Detention
"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions [for removal] may be given ... 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."
A power to grant temporary admission to the UK without detention or release from detention is granted by paragraph 21(1) of schedule 2 without prejudice to a later exercise of the power to detain. By paragraph 1(3) of schedule 2 immigration officers must act in accordance with instructions given by the Secretary of State to the extent that they are not inconsistent with the immigration rules (see paragraph 26 below).
(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 at all;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
It is common ground that these principles apply equally to cases of removal under schedule 2. A fuller analysis to the same effect is to be found in the judgment of Lord Hope in Kambadzi at paragraphs 9 – 12.
The Secretary of State's Policy
"In all cases, case workers should consider on an individual basis whether removal is imminent. If removal is imminent, then detention or continued detention will usually be appropriate. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks. Cases where removal is not imminent due to delays in the travel documentation process in the country concerned may also be considered for release on restrictions. However, where the FNP [foreign national] is frustrating removal by not co-operating with the documentation process, and where that is a significant barrier to removal, these are factors weighing strongly against release."
Although the guidance applies specifically to foreign nationals convicted of criminal offences the test of imminence is habitually applied to those subject to detention under schedule 2. At 55.6.3 imminent removal from the United Kingdom is given as one of the six possible reasons for detention specifically listed in Form IS91R for completion and delivery to the person concerned.
"The decision to detain an entire family should always be taken with due regard to Article 8 of the ECHR ... families, including those with children, can be detained on the same footing as all other persons liable to detention. This means that families must be detained in line with the general detention criteria (see 55.1). Form IS 91 must be issued for each person detained including for each child. Detention of an entire family must be justified in all circumstances and ... there will continue to be a presumption in favour of granting temporary release. ... as a matter of policy we should aim to keep the family as a single unit. However, it will be appropriate to separate a child from its parents if there is evidence that separation is in the best interest of the child. Local authority's social services department will make this decision. As long as the child is taken into care in accordance with the law, and following a decision of a competent authority, Article 8 of the ECHR will not be breached. ... No families should be detained simply because suitable accommodation is [not] available."
"(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
(2) States parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her and, to this end, shall take all appropriate legislative and administrative measures.
(3) States parties shall ensure that the institution, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, and in the number and suitability of their staff, as well as competent supervision."
"(b) no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity of the law and shall be used only as a measure of last resort and for the short appropriate period of time."
"The best interest of the child will be a primary consideration (although not necessarily the only consideration) when making decisions about his or her future."
At paragraph 1.7 the UKBA would seek to ensure that children were treated in a way that safeguarded them, promoted their welfare and promoted their upbringing by their parents. Children should be seen as children rather than simply as migrants subject to immigration control or as adjuncts to a principal applicant. At paragraph 1.12 the code acknowledged that it did not "create any new or overriding duty which will interfere with the UK Border Agency's primary function; namely to uphold the integrity of the immigration control system, and in doing so, to apply the immigration legislation, the immigration rules and the relevant policies of the Secretary of State for the Home Department".
"55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need."
5.7 Preventative treatment for malaria is a special case in that medication must be taken shortly before travel. People detained prior to removal may not therefore be able to make the necessary arrangements for themselves. Any malaria prophylaxis recommended as appropriate by the removal centre medical staff for pregnant women and children under 5 should normally be provided and time allowed for it to take effect before removal. The guidance by the advisory committee on malaria prevention ... should be followed and copies of it should be given to the detainees concerned. Specialist advice (according to the relevant condition or age of the detainee, which can be obtained from a helpline), should be provided for pregnant women, children under 5 and those with medical conditions which might contra-indicate the prophylaxis. In the event of adverse side-effects, time should also be allowed to obtain and follow further medical advice. Removal need not be deferred in any case where a detainee declines (on his or her own behalf or on behalf of a dependent child) to take malaria prophylaxis that has been provided on medical advice.
5.8 It should be noted that paragraph 4.8 of the ACMP advice states that "Mefloquine [also known as Larium] is generally started with a 2-3 week window usually to determine tolerance if it has not been used before. If removal is delayed, stopping and re-starting the prophylaxis regime should not be a problem." In the case of an adverse reaction to Mefloquine (which may produce psychotic side effects) or other prophylaxis, removal centre health care staff should seek advice about alternative medication ..."
The type of prevention appropriate to Uganda is stated (for category 4) in a table attached to the instructions:
"Mosquito bite prevention plus either mefloquine, doxycycline or atovaquone-proguanil ..."
At paragraph 5.12 a period of 3 weeks was recommended for treatment with Mefloquine and a period of 2-3 days for treatment with Malarone before removal.
The claim for judicial review
"51 The question then is what is to be made of the Secretary of State's public law duty to give effect to his published policy. In my opinion the answer to that question will always be fact-sensitive. In this case we are dealing with an executive act which interferes with personal liberty. So one must ask whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he has under the statute. Unlike the 2001 Rules, chapter 38 of the manual is concerned with the lawfulness of the detention. That is made clear in the opening paragraphs: see para 18, above. It has been designed to give practical effect to the Hardial Singh principles to meet the requirement that, to be lawful, the measures taken must be transparent and not arbitrary. It contains a set of instructions with which officials are expected to comply: see Schedule 2 to the 1971 Act, para 1(3). As I see it, the principles and the instructions in the manual go hand in hand. As Munby J said in para 68, the reviews are fundamental to the propriety of continued detention. The instructions are the means by which, in accordance with his published policy, the Secretary of State gives effect to the principles. They are not only commendable; they are necessary."
(1) Contrary to para. 55.9.4 EIG the Secretary of State failed to apply the presumption in favour of release. There was no history of absconding and the personal circumstances of the appellant and her children made the risk negligible. There were no factors which could sensibly have overcome the presumption;
(2) The Secretary of State's letter of 11 December 2008 suggesting that the onus was upon the appellant to establish the requirement for prophylaxis was inconsistent with the policy. When it became clear that prophylaxis could not be administered to the children in time for removal on 11 December there was no prospect of imminent removal and, therefore, no justification for detention;
(3) The Secretary of State's malaria prophylaxis and family detention policy required the Secretary of State so to plan the removal as to avoid the need for detention until removal was in fact imminent. Imminent removal could not be achieved until prophylaxis had been administered to the children and the requisite period had elapsed to enable it to take effect. Contrary to policy the family was taken back into detention on 17 February 2009 when the Secretary of State knew or should have known that a period of 2-3 weeks was required for the prophylaxis to become viable.
"34. For his part, Mr Dunlop submitted (correctly, in my view) that the correct question is not so much whether removal was "imminent" as at 11th December 2008 but, insofar as there is any difference between the two ways of expressing the matter, whether there remained a reasonable prospect of removal within a reasonable period of time: see Hardial Singh. As he pointed out, it is clear that there was initially every reason in this case for considering that the judicial review proceedings could be expedited so as to be concluded within a period of 28 days or so and that the issue of appropriate malarial prophylaxis could be properly addressed within the same general timescale (although not so as to enable removal to go ahead on 11th December 2008: see paragraph 10 above). In my view, on that basis the Secretary of State was entitled to conclude that removal remained "imminent" and/or possible within a reasonable period of time (see R (WM) v SSHD  EWHC 2562 (Admin) at paragraph 56) even though fresh removal directions had not been set: see R (Ahmed) v SSHD  EWHC 1533( Admin)."
The judge's reasoning applied to both periods of detention. As to the period between 10 and 12 March 2009 the judge said at paragraph 40:
"40. As for the period from 10th March to 12th March 2009, I accept Mr Dunlop's submission that a period of two days for the Secretary of State to respond to the outcome of the renewal hearing was not unreasonable, given the size of the Home Office, its workload and the administrative steps that are necessary when releasing a family into appropriate publicly funded conditions."
Grounds of appeal
The policy of imminence of removal
Assessment of imminence
Reasonableness of a period of four weeks
Compliance with malaria prophylaxis policy
Two day delay
"90....Accordingly...where the defendant was notified of the Rule 39 indication on 4 August and addresses for the claimant (whether the NASS address or the alternative address that had became available in Bristol) only became available and supplied to the defendant in the early afternoon of 7 August, it cannot be said that the defendant did not act with appropriate dispatch in directing the claimant's release later that afternoon."
"61. In some cases it may be very difficult, applying Hardial Singh principles, to identify any particular date on which detention has ceased to be lawful. Any date will inevitably be "arbitrary" to some extent, and adopting the date of the judgment may well be the best that the judge can do on the available evidence. However, in the present case, allowing a reasonable time for those officials in the Home Office responsible for authorising Mr. Abdi's continued detention to appreciate the implications of the HOPO'S concession at the resumed Tribunal hearing on 12th December 2008, it should have been, even if it was not, obvious to them by the 19th December 2008 that it was not going to be possible to effect removal within a reasonable time, so that detention was no longer justified.
62. The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts."
It was thus recognised by this Court that the reasonableness of the length of detention will depend not just upon the legal consequences of an event relevant to justification for detention but upon the reasonable ability of the administrative officer to respond to them.
"24. There is obviously force in the argument for the claimants that if there is no suggestion that they might run away then it cannot be strictly necessary to detain them as opposed to requiring them to comply with a fixed regime enabling detailed examination to take place. This, however, ignores the reality—large numbers of applicants have to be considered intensively in a short period. If people failed to arrive on time or at all the programme would be disrupted and delays caused not only to the individual case but to dealing with the whole problem. If conditions in the centre were less acceptable than they are taken to be there might be more room for doubt but it seems to me that the need for speed justifies detention for a short period in acceptable physical conditions as being reasonably necessary.
25. This does not mean that the Secretary of State can detain without any limits so long as no examination has taken place or decision been arrived at. The Secretary of State must not act in an arbitrary manner. The immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making.
26. Statutory powers of this kind must be exercised reasonably by government, at any rate in the absence of specific provision laying down particular timescales for administrative acts to be performed. An analogous application of this principle is to be found in judgments dealing with the detention of those who are or may be subject to deportation. Thus in R v Government of Durham Prison, Ex p Hardial Singh  1 WLR 704 at 706 Woolf J said in relation to the power of deportation:
"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".
The policy concerning children
"27...However, upon the basis of the statements of Ministers to which I have referred I accept that it is envisaged that when dealing with families with children the key elements identified above should be applied with a degree of rigour that may be absent when adults alone are being considered."
The judge concluded at paragraph 44:
"44. In my judgment, it is open to significantly greater debate whether the Defendant's policy in 2005 on detention generally as it applied to families with children is unlawful. On balance, however, I have reached the conclusion that it is not. As I have indicated above the policy consists of a number of key elements. Although these key elements are not phrased in an identical manner to the phraseology of the relevant articles of UNCRC, in my judgment the Defendant's policy is compatible with the general thrust of the Articles of UNCRC. In this field, it is not appropriate, in my judgment, to seek out linguistic niceties when comparing an international convention with a domestic policy so as to make an assessment of whether the policy conforms with the international convention. Rather, in my judgment, the Court should consider whether the two are compatible when they are compared fairly and objectively and in the round. Viewed in that light, there is no material difference between Article 37(b) which prohibits the deprivation of liberty of a child in an arbitrary fashion and specifies that detention shall be used a measure of last resort and for the shortest appropriate period of time and a policy which demands that detention must be used only where all reasonable alternatives are discounted and for the shortest period necessary. Further, the fact that the interests of the child must be a primary consideration when taking action in respect of a child cannot preclude detention in all circumstances. Obviously, on occasions, other factors must be taken into account in deciding upon the proposed course of action."
"25. ...I propose to proceed on the basis that the proper interpretation of the Defendant's policy is that detention of families with children should be authorised only in exceptional circumstances. That accords with the evolving understanding of the policy over time; it also means that the suggestion contained in the written policy that families with children can be detained on the same basis as any other person liable to removal can be regarded, quite properly, as redundant."
Lord Justice Leveson
Lord Justice Ward