Case No: C4/2010/2022
Neutral Citation Number: [2011] EWCA Civ 857
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION, 
ADMINISTRATIVE COURT, BIRMINGHAM
(MR JUSTICE BEATSON)
REF: CO110852009
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/07/2011
Before :

LORD JUSTICE MAURICE KAY 
(Vice President of the Court of Appeal, Civil Division
LORD JUSTICE CARNWATH
and
LORD JUSTICE LLOYD
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Between :

	THE QUEEN on the application of AR	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Raza Husain QC and Mr Graham Denholm (instructed by TRP Solicitors) for the Appellant
Mr Alan Payne (instructed by Treasury Solicitors) for the Respondent

Hearing date : 23 May 2011
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Judgment
Lord Justice Maurice Kay: 
1.	The appellant is a national of Somalia.  He arrived in the United Kingdom on 1 October 2004 and applied for asylum, claiming to belong to a persecuted minority clan from the Jabba region of Southern Somalia.  The Secretary of State refused the application on 17 November 2004.  The appellant appealed but his appeal was dismissed by an adjudicator on 15 February 2005.  The adjudicator disbelieved the appellant’s account.  Subsequent applications were made within the specialist appellate system but they failed.  By August 2005, the appellant’s rights of appeal had been exhausted.  Thereafter he was refused accommodation as a destitute asylum seeker.  He was subjected to a monthly reporting condition with which he substantially complied.
2.	On 9 March 2009 the immigration authorities began to take steps with a view to removing the appellant to Somalia.  Local officers contacted the Somali removals team within the Removal Support and Coordination Unit (ReSCU).  On 10 March ReSCU decided that the appellant was suitable for removal under a European Union format letter which is a type of emergency travel document.  Checks were made to ensure that there were no barriers to removal recorded by the Operational Support and Certification Unit.  When the appellant reported on 8 July 2009, he was detained pending removal.  On 10 July the Secretary of State provided IAS, who were recorded as representing the appellant, with a notice of the decision to detain and the reasons for it.  On 16 July removal directions were set for 15 August to Mogadishu via Nairobi.  They were served on the appellant on 17 July.
3.	On 23 July, Mr Aiaid, a friend of the appellant, wrote to the European Court of Human Rights (ECtHR) seeking urgent intervention to prohibit removal.  The ECtHR treated the letter as an application under Rule 39 and on 3 August a Deputy Section Registrar wrote to the appellant stating that the Acting President of the Fourth Section had decided to grant Rule 39 protection and that the United Kingdom Government had been informed that he should not be removed to Somalia until further notice.  Also on 3 August solicitors acting for the appellant wrote to the Secretary of State contending that he was entitled to humanitarian protection in the light of conditions in Somalia as described in HH (Mogadishu: armed conflict: risk) [2008] AIT 00022 and AM and MM (armed conflict: risk categories) Somalia CG [2008] AIT 00091.
4.	On 4 August 2009 the appellant applied for bail relying on, among other things, the Rule 39 indication and the recent application for humanitarian protection.  On the same day, following notification of the Rule 39 indication, immigration officers asked ReSCU to cancel the removal directions.  On the afternoon of 6 August efforts to find a bail address for the appellant were completed and on 7 August he was released.
These proceedings
5.	The appellant issued a claim form in the Administrative Court on 28 September 2009 seeking declarations that the decision to set removal directions and his detention were unlawful.  He also claimed damages.  At the centre of his claim was the contention that at all material times the Secretary of State knew or ought to have known that any Somali in the position of the appellant would be granted Rule 39 protection by the ECtHR without investigation of the circumstances of his case – in other words, on a fact-insensitive basis.  In a judgment handed down on 13 July 2010, Beatson J dismissed the application for judicial review.
The judgment of Beatson J
6.	Beatson J accepted that ignorance on the part of individual immigration officers as to the approach of the ECtHR to Rule 39 applications on behalf of Somalis could not justify the setting of removal directions if to do so would be otherwise unlawful (paragraph 74).  His rejection of the appellant’s claim was explained in the following passages (at paragraphs 76 and 82-83):
“The policy of the UK government is clear and set out in paragraphs 5.2 to 5.3 of the … Operational Guidance Notes.  The UK government’s policy and that of the Border Agency is stated to be fact-sensitive; that is to consider each return of each individual to Somalia on the merits of the particular case.  But it is also said that, while continuing to seek to remove failed asylum seekers and doing so in some cases, the UK will comply so far as is possible with any Rule 39 indications given in a particular case …
In this case the claimant was represented throughout the appeal process.  Over four years between the date his appeal rights were exhausted and the time the defendant decided he should be removed, no representations had been made by him or on his behalf asking that he should be given leave to remain in the UK on human rights grounds or because he was entitled to humanitarian protection because of the situation in Somalia …
The defendant knew from 9 July, the day after the claimant was detained, that IAS was instructed on his behalf.  The removal directions were only set on 16 July.  They were served with the instructions about instituting judicial review and the statement that access to a telephone will be given to enable a detainee to contact a legal adviser or representative.  The removal directions were set for 15 August, almost a month later.  In the light of the absence of any representations on behalf of the claimant since his appeal rights were exhausted, the decision in AM and AM … , the defendant’s Operational Policy, and the time between the setting of the directions until the date set for removal, I consider the Secretary of State was entitled to set the removal directions that he did.”
(I should add that soon after 9 July the appellant transferred his instructions from IAS to his present solicitors but nothing turns on that.)
7.	Having rejected the main ground of challenge, Beatson J also rejected a narrower ground which claimed that, even if the detention had been lawful at the outset, it ceased to be so on or about 4 August once the rule 39 indication had become known.  He did so on the basis that the Secretary of State had acted with reasonable dispatch in satisfying herself about available accommodation.  The narrower ground is not advanced on this appeal.
The grounds of appeal
8.	At the commencement of the appeal, Mr Raza Husain QC helpfully synthesised the issues sought to be raised by the grounds of appeal as follows:
“(1)	Is it permissible for the Secretary of State to have a fact-sensitive policy on setting and implementing removal to Mogadishu (and to detain on the strength of such a policy) in circumstances where she knows that the ECtHR has adopted a fact-insensitive approach restraining such removal (by indicating binding rule 39 measures) in all such cases, irrespective of factual merit?  Does it make a difference that the ECtHR’s approach was itself informed, at material times, by the pendency of domestic test-case litigation?
(2)	Did the Secretary of State apply a fact-sensitive approach here, ie did officials conduct an up-to-date risk assessment, including consideration of the safety of the route to the home area via Mogadishu?”
9.	Mr Husain emphasises that the sole ground upon which the appellant was detained was that removal to Mogadishu was imminent.  This is not a case involving a risk of absconding or offending.
1. Rule 39
10.	Rule 39 of the Rules of Court of the ECtHR provides:
“The Chamber or, where appropriate, its President, may, at the request of a party or any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interest of the parties or of the proper conduct of the proceedings before it.”
11.	On 3 August 2009, the ECtHR notified the UK Government that in the present case the Acting President of the Chamber had decided 
“… in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to your Government under Rule 39 … that the applicant should not be deported to Somalia pending the Court’s decision in M(2) v United Kingdom (application no. 45196/06).”
That intervention is what gave rise to the appellant’s release.  It illustrates what normally happens, and what one would expect to happen, once a Rule 39 indication has been given in a specific case.
12.	The approach of the ECtHR to Rule 39 was described in Mamatkulov and Askarov v Turkey (2005) 41 EHHR 25, in which the Grand Chamber stated: 
“103.	 … the Court applies r.39 only in restricted circumstances.
104.	Interim measures have been indicated only in limited spheres.  Although it does receive a number of requests for interim measures, in practice the Court applies r.39 only if there is an imminent risk of irreparable damage, … The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings.”
13.	None of this is surprising.  Moreover, it is no secret that in recent years the sheer number of such cases has grown exponentially and exceeds the capacity of the Court to deal with them all on an expeditious basis.  The applications tend to include clusters relating to particular countries of origin at different times.  Somalia has been one such country.  This has led the ECtHR to take a pro-active approach.
14.	On 30 September 2008, the Registry of the ECtHR contacted the Foreign and Commonwealth Office (FCO) in relation to cases involving removal to Somalia.  The Registry official said that the Court did not understand how the UK Government could continue to remove individuals to Somalia while there were still cases pending before the domestic and European courts.  He made clear that the ECtHR was contemplating staying all existing Somalia removal cases pending the outcome of the domestic proceedings.  He asked if the UK Government would halt all removals to Somalia if the Court were to impose such a stay.  The FCO consulted the UK Border Agency (UKBA) and an official spoke to the appropriate person at the ECtHR on 10 October 2008.  The message was that the UK Government would not adopt a blanket suspension but would continue to consider each case on its merits because (1) there was recent country guidance concerning risk on return to Somalia (HH and others (Mogadishu: armed conflict risk) Somalia CG [2008] UKAIT 0002228); (2) the situation in Somalia did not justify the conclusion that all removals to Somalia would necessarily involve a breach of Article 3 of the ECHR; and (3) enforced and voluntary removals were continuing.  It seems that there were some 200 removals or returns to Somalia between January 2004 and September 2009, with only a short period of suspension in September / October 2008 because of security reasons at Mogadishu airport.
15.	The Registry of the ECtHR wrote on 23 October 2008, notifying the UK Government that it was aware of the country guidance given in HH but that it also knew that HH was still pending in the Court of Appeal.  (We now know that the Court of Appeal allowed the appeal on 23 April 2010: [2010] EWCA Civ 426).  For this reason, the ECtHR had decided on 7 October 2008 to adjourn all of the 116 pending applications concerning removal to Somalia “until the question of risk of return has been considered fully by the domestic courts”.
16.	On 24 April 2009, the FCO obtained oral confirmation from the Registry that the ECtHR had been granting interim measures under Rule 39 to all applicants subject to removal directions to Mogadishu.  The FCO passed this information to the UKBA.  The evidence of the Secretary of State in the present case is that after 28 October 2008, those in communication with the Registry assumed that Rule 39 indications were being given on a blanket fact-insensitive basis.
17.	The next development took place in the Administrative Court.  On 22 May 2009, Davis J handed down his judgment in R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin), which was also concerned with detention pending removal to Somalia.  He was told of the ECtHR’s fact-insensitive approach in relation to Rule 39 applications in such cases and that it was the policy of the Secretary of State to abide by Rule 39 indications once given but to continue with removal in the absence of such an indication and on a fact-sensitive basis.  Davis J was not impressed.  He said (at paragraph 73):
“All this shows a nice (or perhaps, changing the meaning of the word, not so nice) regard on the part of the Home Office to the letter of the law.  It shows, in my view, an almost total disregard to the spirit behind the [ECtHR’s] stance.  It also and most unattractively, places at a serious and potentially irreversible disadvantage those Somalis facing forced return to Mogadishu who do not have the legal assistance or resources or knowledge to enable them to seek to apply to the [ECtHR].”
The claimant in that case had not made an application to the ECtHR and so there was no Rule 39 indication in his case.
18.	On 28 May 2009, the FCO resumed its correspondence with the ECtHR, pointing out that permission to appeal had not yet been granted in HH, which had been stayed in the Court of Appeal pending the judgment in the European Court of Justice in Elgafaji (which had been handed down in February 2009: [2009] 1 WLR 2100), and that the Asylum and Immigration Tribunal had promulgated further country guidance in AM and AM (armed conflict risk category) (Somalia) CG [2008] UKAIT 00091 on 27 January 2009.  (A further strand in this tangled web is that AM was later joined with MM in the Court of Appeal and was considered in the same judgment on 23 April 2010: see paragraph 15 above.  Moreover a yet further country guidance case on Somalia has recently been heard, but not yet determined in the Upper Tribunal, and the long-awaited judgment of the ECtHR in Sufi and Elmi v United Kingdom, 8319/07 and 11449/07 was promulgated on 28 June 2011, but these developments do not impact upon the present appeal).  
19.	These historic developments illustrate the tension between the ECtHR and a member state.  Such tension is not peculiar to the United Kingdom.  The Council of Europe held a High Level Conference on the Future of the European Court of Human Rights in Izmir on 26-27 April 2011.  It resulted in a Declaration, paragraph 3 of which states:
“The Conference …
Welcoming the improvements in the practice of interim measures already put in place by the Court and recalling that the Court is not an Immigration Appeals Tribunal or a Court of fourth instance, emphasises that the treatment of requests for interim measures must take place in full conformity with the principle of subsidiarity and that such requests must be based on an assessment of the facts and circumstances in each individual case, followed by a speedy examination of, and ruling on, the merits of the case or of a lead case.”
This complex history is the inevitable result of the volume of migration, the proliferation of litigation both here and elsewhere, the difficulties caused to courts and governments who are forever waiting for pending appeals and applications to be decided and the particular problems of the log-jam in the ECtHR.  I have not mentioned every manifestation of the complexity.  What I have mentioned should be sufficient to demonstrate the context.
20.	Although counsel have made detailed submissions with extensive reference to authorities, the issue is relatively straightforward.  It is common ground that for the State to detain a person pending removal, the decision to detain (or to continue to detain) must comply with the principles expounded by Woolf J in R v Governor of Durham, ex parte Hardial Singh [1984] 1 WLR 704, at page 706.  The second and third principles are:
“Secondly, as the power is being given [by the Immigration Act 1971] 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.”
21.	The case for the appellant is that, at the point when it was decided to detain the appellant, the Secretary of State knew (even if her officials did not) that, upon the appellant applying to the ECtHR for Rule 39 protection, he would receive it pursuant to the fact-insensitive practice of the Court and, as the Secretary of State would comply with a Rule 39 indication, she knew that she could not effect removal within a reasonable time.  In effect, she was taking a chance on the appellant not seeking legal advice in time to stop the removal.  Once sought, such advice would inevitably lead to the removal being postponed and, consequently, to the detention being terminated because it would no longer be justifiable under the Hardial Singh principles.  In these circumstances, submits Mr Husain, it was unlawful to detain the appellant.
22.	The case for the Secretary of State is that, at the time of the decision to detain, there was no legal impediment to removal.  She is not bound by a notified policy of the ECtHR, only by its judicial orders and directions, including a case-specific Rule 39 indication.  Mr Alan Payne seeks to rely on two authorities.  The first is Naderajah v Secretary of State for the Home Department [2003] EWCA Civ 1768 which established that it is not unlawful for the Secretary of State to detain pending removal following notification that the person in question intends to apply for judicial review (see paragraphs 61-63, per Lord Phillips MR).  That, of course, is a different situation – one where the indication, which may or may not come to fruition, comes from the detainee or his representatives.  The second case, I and others v Secretary of State for the Home Department [2010] EWHC Civ 727, concerned the detention pending removal of a man whose asylum and human rights claim had been certified by the Secretary of State under section 96(2) of the Nationality, Immigration and Asylum Act 2002.  Munby LJ (with whom Moses LJ and Lord Neuberger MR agreed) said (at paragraph 39):
“It needs to be emphasised that the mere fact that judicial review proceedings have been commenced neither invalidates the removal directions nor requires the detainee to be released.  Whatever may be his practice in the generality of such cases, the Secretary of State is fully entitled to adopt the stance that the removal directions will be implemented unless a judge of the Administrative Court has made an order expressly prohibiting that step … ”
The position is, of course, different when a statutory appeal against an “immigration decision” to the First Tier Tribunal is pending (Nationality, Immigration and Asylum Act 2002, section 78(1)(a)).  In that case the pending appeal has suspensory effect without more.  However, the statutory provision has not been extended to applications for judicial review, where any suspensory effect is strictly voluntary in the absence of an interim court order, although the Secretary of State maintains a policy of not removing if an expeditious application for permission to apply for judicial review is lodged in the Administrative Court.
23.	What, then is the position in a case such as the present one?  In my judgment, the analysis on behalf of the Secretary of State is correct.  At the point in time when the appellant was detained pending removal, there was no legal impediment to removal.  In domestic law, neither statute nor an order of a domestic court forbade it.  Nor had the ECtHR intervened pursuant to Rule 39.  As the appellant did not immediately apply to the ECtHR for emergency protection, whether because of an absence of good legal advice or as a result of a decision on his part to return to Somalia voluntarily – and there is evidence that both such reactions do sometimes occur - I do not consider that the Secretary of State was under a legal obligation to anticipate a Rule 39 indication.  A general statement of policy made on behalf of the ECtHR through its Registry does not have the juridical status of an order of the Court, such as an interim measure under Rule 39, made in the proper exercise of its jurisdiction.  I do not consider that the Secretary of State’s knowledge of the announced policy of the Court vitiated the decision to issue removal directions and to detain pending removal.  Nor do I consider that the fact that the ECtHR was said to be awaiting further developments in the domestic country guidance makes any difference.  I would reject this ground of appeal.
2. Fact-sensitive risk assessment
24.	The foundation of the second ground of appeal is built on the policy of the Secretary of State that “each case for removal is considered on its individual merits”.  The submission on behalf of the appellant is that there was no such fact-sensitive assessment by the Secretary of State in this case and that the decision to remove and to detain pending removal was unlawful for this reason.  This ground of challenge did not feature in the original application for judicial review.  However, at the hearing before Beatson J an application was made for permission to amend the grounds.  The application was opposed by reference to lateness and the consequent evidential difficulties for the Secretary of State.  In his judgment, Beatson J said (at paragraph 6):
“… [Mr Husain] accepted that, given the date on which the defendant was first informed of the application to amend, since the defendant considered she needed evidence, the application could not be pressed.  Accordingly the evidential position is such that it is unfortunately not possible to deal with this ground in these proceedings.”
No criticism is or could be made of this approach.
25.	Although that is where the matter stood at the hearing (and is reflected in the reserved judgment), Beatson J nevertheless invited counsel for the Secretary of State to take further instructions between the hearing and the handing down of the judgment and he did so.  This produced a post-hearing written submission as follows:
“ReSCU does not undertake risk assessments but puts in place logistical arrangements for removal once the case owner has assessed that an individual is removable … [while] no assessment of risk or return was recorded on the file, the defendant’s legal representatives were instructed that the case worker decided that the claimant was removable on the basis that his appeal rights had been exhausted, no further representations had been received despite the fact that throughout the relevant time the claimant was legally represented; the UK Border Agency had continued to remove individuals to Somalia via Mogadishu airport; and the claimant fulfilled the ReSCU criteria.”
This is substantially confirmed by the contemporaneous documentation.  
26.	Mr Husain submits that, although there was an evidential vacuum justifying Beatson J’s decision not to allow the amendment to embrace this ground of appeal at the time of the hearing, the gap was filled by the post-hearing written submission on behalf of the Secretary of State.  He contends that, when contemplating removal, it was incumbent upon the Secretary of State to address such matters as the intended route and method of return of the appellant from Mogadishu to his home area in southern Somalia and the risk in relation thereto in a fact-sensitive way.
27.	It is correct that the Secretary of State did not approach the matter in that way.  Her officials simply concerned themselves with whether the appellant was “suitable for removal” in the sense that there were no outstanding appeals or representations and no known medical risks; that appropriate travel arrangements were available; and that removal to Mogadishu was not currently inappropriate.  It was apparent that no further representations had been received from the appellant (who had been reporting monthly) or his legal representatives since he had exhausted his appeal rights in August 2005.  
28.	The difficulty with this ground of appeal is that, when the appellant sought international protection in October 2004, his account was comprehensively disbelieved by the Secretary of State (“It is believed that you belong to a major clan and have fabricated your alleged membership of a minor clan in order to be granted refugee status”) and was comprehensively rejected by the adjudicator on appeal.  There was no acceptance or finding as to where in Somalia the appellant came from.  All that remained as much of a mystery as it had been in relation to the dishonest appellant in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, (see especially the judgment of Sir John Dyson SCJ at paragraph 47).  It seems to me that, against the background of the historic and total rejection of the appellant’s case (save for the fact that he is Somalian) and in the absence of further representations from him or from legal representatives on his behalf, the Secretary of State was entitled to proceed without initiating a further fact-finding inquiry.  At the material time (June 2009), the current country guidance was set out in AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091.  It did not amount to a blanket prohibition on removal to Mogadishu and the appellant had not succeeded in identifying himself as a person falling within the defined risk categories.  In these circumstances, the complaint of an absence of fact-sensitive assessment is unsustainable.
Conclusion
29.	For the reasons I have given, I would dismiss the appeal on both grounds.
Lord Justice Carnwath:
30.	I agree.
Lord Justice Lloyd:
31.	I also agree.