England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Mr Justice Beatson
[2012] EWHC 878 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/04/2013

Lord Justice Moses:

1. The appellant was detained under the Immigration Act 1971 for 26 months between 18 May 2009 and 15 July 2011. At that time his three sons were 3, 9 and 13. When he was released on bail they were 5, nearly 12 and nearly 16. That period of separation will have weighed heavily on those three young boys "whose sense of time is so different from that of adults" (HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90 paragraph 85). The appellant claims that his detention was unlawful. The Border Agency had failed to comply with its duty under s.55 of the Borders, Citizenship and Immigration Act 2009 and had acted in breach of the appellant's Article 8 rights. It had failed to consider the best interests of the appellant's children as a primary consideration.
2. Beatson J concluded that the appellant had been unlawfully detained between 18 May 2009 and 11 January 2010 because the Border Agency had failed to follow departmental policy to consult the Office of the Children's Champion (OCC). But the OCC had been consulted in January 2010, and Beatson J concluded that the continued detention was not unlawful. In respect of the period the appellant was unlawfully detained, he took the view that the appellant was only entitled to nominal damages because he could and would have been lawfully detained.
3. The appellant claims that the whole of the period during which he was detained was unlawful. The history of his detention demonstrates a breach of the duty to consider the best interests of the appellant's children. Once it is recognised that the whole of the period of the detention was unlawful, there can, so he submits, be no question of vindicating the breach by merely awarding nominal damages.
4. The appellant contends that the judge, like the Border Agency and the Secretary of State before him, failed to consider the best interests of the appellant's children as a primary consideration and that this failure infected the decisions made throughout the period of his detention until his release on bail. No sufficient regard has been had for the effect on the children of so lengthy a period of separation and stress. Had such consideration been given in fulfilment of the Border Agency's duty, the appellant would not have been detained pending his deportation but, at worst, some less restrictive measure, such as electronic tagging, would have been adopted so as to keep the family together. This appeal throws into sharp relief the importance of consideration of the best interests of children as a matter of primary concern in the context of well-established Hardial Singh principles.

The Facts

5. The facts have been fully set out by Beatson J (paragraphs 8-39). It is only necessary to highlight two features of those facts; first, the facts relating to the appellant's family and second, the facts relating to the appellant's immigration history. It is these two features which created the tension between the need to consider the appellant's children's best interests as a matter of primary concern and the need to consider the risk of this appellant escaping before he was deported with his family.
6. The appellant is Iranian and first entered the United Kingdom in March 2000. His application for asylum on the grounds that he risked persecution because he refused to give up land in his name was refused on 11 December 2000 and he lodged an appeal on 3 January 2001. Whilst his appeal was still pending, on 26 April 2001 he left under the Voluntary Assisted Returns Programme. When applying for assistance, he said he was missing his family and said that he feared for his family and that problems relating to his land had been resolved. In his absence, his appeal was allowed on human rights grounds.
7. Six months after his voluntary return to Iran, the appellant re-entered the United Kingdom during October 2001. On 19 November 2001 he was granted four years' exceptional leave to remain, in the light of the adjudicator's favourable decision. His wife and children left Iran in 2002 and she claimed asylum in Germany on 16 March 2003. On 8 September 2004 the appellant arrived at Dover with his wife and two children in the boot of his car.
8. Two days before his four years' exceptional leave to remain came to an end, on 17 November 2005, the appellant applied for indefinite leave to remain. But whilst that application was pending, he again sought assistance under what was now called the Voluntary Assisted Return and Reintegration Programme. He named his wife and three sons as dependants and he returned with the aid of a sum of between £15,000 and £16,500. In making the claim, he and his wife signed notices withdrawing their applications for asylum, expressing their intention not to exercise appeal rights, and withdrawing their appeal forms. This was the second time the appellant had obtained financial assistance to return to live in Iran.
9. On 1 October 2008 the appellant again entered the United Kingdom unlawfully. He and his family had travelled via Venezuela, Brazil and Grenada. They claimed to be EU nationals; they were using forged Finnish passports. The appellant was arrested on 2 October 2008 and lodged an asylum application for himself, but not for his family. On 16 October 2008 he pleaded guilty to two counts of possessing false identity documents and was sentenced to 15 months' imprisonment. On 20 November 2008 he was served with a "Liability to Deport" letter.
10. The appellant's prison term ended on 18 May 2009, although he had erroneously been served with a notice of a decision to detain dated 22 January 2009. The appellant's wife made an application for asylum as a dependant. This had been refused on 17 February 2009 and her appeal was withdrawn on 21 May 2009. On 18 May 2009 the appellant was served with a notice of the decision to make a deportation order dated 8 May 2009. He was also served with a further notice of the decision to detain him under the Immigration Act 1971.
11. On 10 August 2009 the appellant's application for asylum was refused and on 4 November 2009 his appeal against deportation was dismissed. The Tribunal found that he was not a credible witness. It also dismissed his human rights appeal. It is relevant to this appeal that the Tribunal considered the position of his wife and family and in particular, health problems from which his family suffered. It concluded that removal would be proportionate because there would be no separation of family members since none had any lawful right to be in the United Kingdom and all would be deported together.

Review of Detention and Bail Applications

12. Beatson J sets out with particularity the record of the Detention Reviews throughout the period of this appellant's detention, pursuant to the Home Department's Enforcement Instructions and Guidance, Chapter 55, which requires detention to be reviewed every twenty-eight days by officials of specified seniority. There were twenty-seven authorisations, eight of which were by officials of a rank below the required seniority. That is of no significance. Two Detention Reviews, in February and March 2009, held when it was believed that the appellant's period of imprisonment had ended, noted that the appellant did meet the criteria for release under conditions of rigorous contact management but that his immigration history indicated that he presented an increased risk of absconding if released. No timescale before removal was identified. The 12 May 2009 Review thought that his removal would be within a reasonable timescale but by July 2009 it was stated that the Border Agency could not give a realistic estimate of when removal was likely to take place.
13. The September 2009 review was of the opinion that the appellant's asylum application in August 2009 was a deliberate attempt to frustrate the removal process, since the appellant must have realised that there was little realistic chance of being granted asylum, and no incentive to remain in contact were he to be released.
14. On 29 October 2009 the review adopted the views of an immigration judge who had refused bail on 26 October, on the basis of the appellant's conviction, which demonstrated he was capable of dishonesty, and the fact that he had said he would not willingly return to Iran.
15. On 2 November 2009 s.55 of the Borders, Citizenship and Immigration Act 2009 came into force. A review dated 26 November 2009 referred to the dismissal of the appellant's deportation appeal on 4 November. It was at that time that the need to contact the OCC for advice on the appellant's deportation was first raised. No reference was made to the need to obtain advice about the appellant's continuing detention.
16. The appellant made eight applications for bail between 5 August 2009 and 15 July 2011. Only the last was granted. For some of them, he may well not have been represented. The immigration judges took the view that his immigration history, and in particular the fact that he had twice returned to Iran under the Voluntary Aided Assisted Return Programme, demonstrated that he had little incentive to comply with any restrictions or conditions falling short of detention. They took the view that he would abscond.
17. After the appellant's application for reconsideration of his appeal against deportation had been rejected on 1 December 2009, his case was referred to the OCC on 23 December 2009. The appellant claims that that reference was so inadequate that it did not render the continuing detention lawful. It made no reference to his detention or continuing detention, but merely asked about his removal. The OCC, in its letter dated 5 January 2010, had no objections to the removal, since he was to be removed with his family. But it did advise that social services should be contacted. Responses were received from Nottingham City Council's children's services team dated 8 and 11 January 2010. It observed that the schools would monitor the children but did not draw attention to any specific concerns, particularly in relation to the continuing separation of the children from their father.
18. On 14 January 2010 a deportation order was made against the appellant. At interview on February 2010 he refused to complete or sign forms in order to obtain emergency travel documents, and repeated his refusal on two further occasions in May 2010. In all, he refused to complete emergency travel documents on five occasions.
19. At a detention review of 22 March 2010 the likelihood of removal was regarded as "very remote". The assistant director thought that he should remain in custody, pending consideration of "robust contact management" and the deputy director agreed that the appellant should be referred for release "as a priority". Detention for only one week was authorised. But by 8 April 2010 it was agreed that the appellant should not be released. The review on 11 May 2010 recommended further detention after consideration was given to prosecuting the appellant for non-compliance with the request to sign forms for the emergency travel documents.
20. The appellant made a further application for temporary admission on 22 June 2010, after his detention review recorded, in June 2010, that he continued to be uncooperative. Bail was refused again in August 2010; the judge had no doubt that he would abscond. By 3 September 2010 the deputy director, on review, expressed concern at the length of time the appellant had been separated from his family.
21. By 29 November 2010 it was thought that removal would not take place within a reasonable timescale. He remained in detention pending consideration for release. The deputy director commented that he posed little risk to the public, but that there was a residual risk of absconding. He recorded the appellant's cooperation "to some extent" with the applications for emergency travel documents, but recorded his unwillingness to return to Iran. By 23 December 2010 the director had taken the view that the risk of re-offending and his "appalling immigration record" demonstrated a higher than usual risk of absconding. The case was, however, referred to the Strategic Director, to see whether the risk of absconding could be reduced through "robust contact management". Bail was again refused on 3 February 2011, after the launch of these proceedings.
22. On 8 March 2011 the appellant completed an "emergency travel document interview". His further human rights representations were refused on 27 June 2011 and his claim was certified as clearly unfounded.
23. The file containing the appellant's application for emergency travel documents was found to be missing at this time but that did not, apparently, cause any significant delay. Once it was found, it was sent to the Iranian Embassy on 13 July 2011. He was released two days later on immigration bail, on 15 July 2011, but by then relationships with Iran were deteriorating and on 2 December 2011 the Iranian Embassy closed. The appellant remains in the United Kingdom with his family.
24. There can be no doubt but that the separation, whilst the appellant was detained, caused severe hardship and misery to his family. There is ample evidence of the difficulties under which this family has laboured which must have been significantly aggravated by their lengthy separation from their father and husband. Puria, the son born on 19 July 1999, has been under paediatric care since he was referred in June 2009. He suffered from severe headaches related to feelings of anger. The Consultant Paediatrician, in a report dated 22 March 2011, recognised "a lot of stress". He noted that the appellant's wife found it difficult to manage the situation and her children. She was receiving assistance from a consultant psychologist.
25. In a moving letter dated 26 May 2009, written when he was 13, the appellant's eldest son said that:-

"The life is very hard for us and nothing can make us happy. We go to school but is not interested for us. Everything is boring. My mom is sick and my brothers most young one cry every day. We miss our dad. My mom lost her weight and she is suffering every day. We waited and were happy that my father's sentence finish and he comes back home. Unfortunately you didn't release him and sent him to detention. We visit dad just two times. Making money is an issue for us and we can't go to visit him…we miss him – our circumstances worsened and life is very very hard for us. I think you have children. You have to realise our situation. Please help us."

Over two years later, on 23 June 2011, the eldest boy described how well he had done at school, finishing 10 GCSEs and hoping to start 4 A-levels that year. He repeated that life had been very difficult for the family. He said:-

"The truth is that my father is a good man who loves his family and who has always done his utmost to protect us and keep us all together."

But although the family put up a façade of normality at home, there is a deep sense of loss and sadness. He describes the particular difficulties of his youngest brother; he becomes very angry and the family have difficulty in controlling him. He describes his worry about him for the future. He says they are all "very emotionally damaged" after two and a half years of separation. He concludes:-

"I just wish I had a voice and that someone would actually listen to me. The only crime that my father has really committed is that he has always tried his foremost to protect our family."

26. There is a statement from the appellant's wife confirming the difficulties from which she suffers looking after the children on her own. The appellant himself has, on a number of occasions, described how much he missed the children. It is of note that on 25 February 2011 he asked the Border Agency to consider electronic monitoring as an alternative to detention.

The Law

27. Beatson J set out in full and accurate detail the relevant statutory provisions and jurisprudence relevant to the appellant's detention and separation. The power to detain pending removal or departure, pursuant to a deportation order conferred by paragraph 2(3) of Schedule 3 of the Immigration Act 1971, is conferred so long as the Secretary of State is intent upon removing the detainee and "there is some prospect of achieving this" (R (Kadir) v Secretary of State for the Home Department [2005] UKHL 39 [2006] 1 AC 207 at [32]). There may be a realistic prospect of removal without it being possible to specify or predict the date when removal can reasonably be expected to occur or to predict with certainty that removal will take place (MH v SSHD) [2010] EWCA Civ 112 at paragraph 65).
28. Beatson J sets out the numerous cases which have applied the Hardial Singh principles over 20 years since they were first enunciated. In the instant appeal the relevant principle is that a deportee may only be detained for a period that is reasonable in all the circumstances and that once it becomes apparent that deportation cannot be effected within a reasonable period, the Secretary of State should not continue to exercise the power of detention. He must act with reasonable diligence and expedition to effect removal (R (WL) (Congo) v Secretary of State for the Home Department [2011] UKSC 12 and R (A) (Somalia) [2007] EWCA Civ 804 at [43] and [45]. The cases all emphasise the different circumstances relevant to the justification for detention. There is a useful passage in the judgment of Sales J, approved by this court in R (MH) v SSHD [2010] EWCA Civ 1112 at [47]. It is for the Secretary of State to satisfy the court on the balance of probabilities that the appellant is properly detained pending removal. In the absence of any risk of posing a danger to the public if free, or committing criminal offences, detention cannot be justified unless there is a risk that the detainee will abscond. The longer the period of detention continues and the weaker their prospect of removal, the more difficult it will be for the Home Secretary to justify detention. As this court and Sales J have remarked: the refusal of the appellant to cooperate with his removal is relevant.
29. As the judge observed, longer periods of detention than the 26 months in the instant appeal have been held to be reasonable: in A (Somalia), 38 months and in R (ABM) [2010] EWHC 2057 (Admin), 36 months was held to be justifiable.
30. None of those considerations have, in the past, been described as "primary considerations". That underlines the significance of the requirement to consider the best interests of children as a "primary consideration". The need to do so received statutory force with the introduction of s.55 of the Borders, Citizenship and Immigration Act 2009 on 2 November 2009. Section 55 requires the Secretary of State, when carrying out any function in relation to immigration, asylum or nationality, to have regard to the need to safeguard and promote the welfare of children in the United Kingdom (s.55(1) and (2)). Section 55 was enacted in obedience to the United Kingdom's obligations under the United Nations Convention on the Rights of the Child 1989. Baroness Hale emphasised in ZH (Tanzania) v SSHD [2011] 2 AC 1 66, the international obligation binding on the United Kingdom in Article 3(1) of the UNCRC:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

The spirit, if not the precise language of this article, has, she said, been translated into national law. Other Conventions lend flesh to that spirit. The Declaration on the Rights of the Child of 20 November 1959 required special safeguards and care to be afforded to children. Article 9 of the Convention on the Rights of the Child of 20 November 1989 requires that:-

"1. States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child."

31. Nor can there be any dispute but that Article 8 of the European Convention on Human Rights is engaged and that respect for private and family life must be given an autonomous meaning consistent with other relevant international instruments (see Al-Adsani v United Kingdom (ECtHR) application number 35763/97 [2001] 34 EHRR 273 paragraph 55).
32. In ZH (Tanzania) Baroness Hale identified the importance of the primary consideration of the best interests of the children in the context of immigration ([23] and [24]). Lord Kerr regarded the primacy of the best interests of the child as ranking higher than any other and where the best interests "clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them" [46].
33. All of this was correctly and fully acknowledged by Beatson J. He did not have the advantage of the decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90. In HH the Supreme Court applied the principle that the child's best interests are a primary consideration when considering Article 8, in the context of extradition. Since the instant appeal fits more appropriately within the interplay between Article 8 and immigration cases it is unnecessary to dwell on HH. The appellant relies on HH for the proposition that Beatson J ought to have considered the children's rights first before assessing the question as to whether the risk of the appellant absconding justified interfering with those rights (see Lord Kerr at [144]). But Baroness Hale accepted that whilst it was important to ask the right questions in an orderly manner, different judges were free to approach the task in different ways [33] and Lord Wilson accepted that a judge is entitled to decide for himself how to approach his task [153]. HH reinforces the need to consider carefully the plight of the children and to spare them, so far as reasonably possible, from avoidable harm caused by their lengthy separation from their father.
34. As I have already recalled, the judge found that the Home Department had failed to follow its own policy to consult OCC as early as possible. Accordingly, the Secretary of State had failed to show lawful justification for the detention until 11 January 2010. It is now well settled that the fact that a defendant could have been detained lawfully does not render the detention lawful where there has been a breach of a requirement of public law, if that breach is relevant to the decision to detain. The test for breach of public law duty is whether the breach is capable of affecting the result and not whether the result would have been different had there been no breach (Baroness Hale [207] in R (WL) Congo v Secretary of State for the Home Department [2011] UKSC 12).
35. But causation is of central importance to the issue of damages. Mr Hawkin, on behalf of the appellant, argued that unless the judge concluded that it was inevitable that the appellant would have been detained, he was entitled to more than merely nominal damages. The submission rested upon the comment of Lord Dyson JSC in R (WL) Congo that it was "inevitable" that the appellants would have been detained [95]. I do not accept the test of inevitability. The Secretary of State, in making good her assertion that damages should only be nominal, need do no more than establish that on the balance of probabilities the appellant would have been detained, even if she had fully complied with her obligations. In R (OM) v SSHD [2011] EWCA Civ 909, Richards LJ considered the same submission and rejected it. He analysed the judgments in the Supreme Court and concluded that there was no discernible intention to lay down a legal test of inevitability for determining whether only nominal damages should be paid [22]. It is impossible to see, in the context of a case such as this, how such a test would work. Justification for detention depends upon an assessment of risk. It could never be said anyone freed from detention would "inevitably abscond"; it would be an absurd and insuperable standard of proof to impose upon the Secretary of State. The risk will vary. Assessment of the risk lies at the heart of the balance between the need to consider the children's best interests as a matter of primary concern against the public interest in seeing that the detainee does not evade the deportation.

Failure to Take into Account the Best Interests of the Children

36. It is not now disputed, by way of any cross-appeal, that the Department failed to follow its own policy. That policy required consultation with the OCC at "the earliest possible juncture" when it was first decided to detain the appellant following the completion of his prison sentence. It is worth emphasising that eight months passed from the time of his post-sentence detention until OCC were consulted. No advice had been sought about the effect on his children of continuing to detain him. On the contrary, the letter dated 24 January 2009, when the appellant was served with notice of the decision to detain him under the Immigration Act 1971, stated:-

"The Secretary of State is not satisfied that your relationships to the United Kingdom are of sufficient proximity to give rise to family life for the purposes of Article 8."

As the judge himself acknowledged, that comment could only have been made in ignorance of the existence of the appellant's wife and children in this country. Far from failing to give the interests of the children sufficient weight, it appears that at the important stage when the first decision to detain was made, the Secretary of State did not even realise that there were any children whose interests required to be considered.

37. There were further significant failures when the Secretary of State did consult the OCC on 5 January 2010. The judge concluded that there was no breach of policy once the OCC had been consulted. But even that process was flawed. The policy of making enquiries of the OCC applies not merely to deportation but also to detention (see paragraph 3.1.5 (quoted in full in Beatson J's judgment at paragraph 52)). This policy requires staff to note that the decision to detain may involve splitting the family for immigration purposes:-

"Consequently, the transfer of the person to immigration detention requires the family issue to be reconsidered, now that the prescribed sentence has been served. If, after consultation with the OCC, it has been determined that in this situation CCD are splitting a family (and the split is proportionate) then staff should seek directorial clearance as described below.

In order to safeguard and promote their well-being, it will be appropriate to ensure enquiries (with the OCC) about the welfare of the child are made as early as possible".

38. This policy was not followed even when the Border Agency e-mailed OCC on 5 January 2010:-

"Please see attached latest Detention Review for the above named who was Court Recommended for Deportation.

Mr Abdollahi lodged an appeal against Deportation on 22 May 2009. His appeal was dismissed on 4 November 2009. He sought consideration of the decision on 18 November 2009 and this was refused on 3 December 2009. We await for his appeal rights to be exhausted.

Mr Abdollahi appealed against [sic]

Regarding his private life, the judge stated '…As to the appellant's wife we take a similar view with respect to any private life though we also do note a letter written by her GP stating that she is receiving medication for depression and that she has been referred "for psychological help". It is said that her difficulties relate to bad dreams, stress, loneliness, insecurity, anger an ability [sic] to relax. We would accept that such treatment forms an aspect of her private life. We do not accept however, on the basis of the letter dated 30 June 2009 which is a brief one, that her mental health problems are of a particularly or especially severe nature…" He goes on to say later after talking about the children's health and that they may have aspects of private life "…In considering matters which weigh against the Appellant, we are of the view that there will be no separation of family members brought about by the Appellant's deportation because he will be accompanied by his other members … We note that none of the affected persons have any lawful right to be in the UK at the present time…"

I would be grateful for your advice on this case on whether we can pursue deportation on Mr Abdollahi. The wife and children have been referred to East Midlands Enforcement Team to arrange Admin Removal (original emphasis)' "

39. There were two defects with this request. First, there is no specific reference to the effect on the children of continued detention. Advice is sought merely as to deportation. It is true that the opening of the e-mail referred to a Detention Review but advice was only sought in relation to deportation. Advice should have been sought in relation to detention as well as deportation. There was no problem with deportation since the family were to be deported together. But it was important that the effect on the children of the extended detention was specifically drawn to the attention of the OCC. It was not.
40. Second, although the e-mail quoted references to the effect on the appellant's wife, it omitted the Tribunal's specific reference to the children. The Tribunal had referred to the behaviour of the youngest boy at the nursery: it had recorded the fact that he (although it referred to the child as a daughter) had a tendency to cry a lot with difficulty in interacting with other children at the nursery. It also referred to an ongoing problem with headaches. None of this was referred to the OCC. The response of the OCC on the same date was to say that it had no objection to deportation. But it added:-

"With respect to the allegations that his wife is depressed and struggling to cope with the children, I would suggest that you report this, in writing, to the local authority's children's social services in the area in which his wife and children reside. Social services may decide to assess the family for limited support until you remove them."

The Border Agency wrote to the County Council on 7 January 2010, recording the appellant's wife's difficulties, due to depression, bad dreams, stress, loneliness, insecurity, anger, anxiety, difficulty relaxing and fear. It also recorded problems with the behaviour of her three children and that she had stated that she was "unable to cope". It asked whether it could arrange for an assessment to be conducted "to enable her to obtain limited support up to and until their removal from the United Kingdom".

41. The duty family support worker reported back on 8 January 2010 that the school had been contacted and no concerns had been raised, although the family would be monitored. It stated that no further action would be taken in respect of children's services involvement. A letter from children's services and the family support worker dated 11 January 2010 recorded that they would be taking no further action at the time.
42. Like the judge, I do not think that the consequences of these failures were detrimental to the best interests of the children. Even had the full information been passed to the OCC, it is difficult to see how their response, or the response of the local authority, would have been any different. After all, the OCC is responsible for giving advice as to the welfare of the children whether advice is sought in relation to detention or to deportation. There is no reason to think that the sequence of events and the nature of the responses would have been any different had a proper request for advice been sought. In those circumstances, I agree with the judge that no breach can be identified in relation to the request to the OCC in January 2010.
43. That, however, is not an end of the matter. The appellant complained that the failure to consider the best interests of the children as a matter of primary concern led to a failure throughout the period of detention properly and fully to investigate the children's situation and to undervalue the serious effects on the children of a continuing detention.
44. As the appellant points out, separation of children from their parents due to incarceration will have a major impact on the well-being and psychological health of the child. If authority is needed for so important but obvious a proposition, it is to be found in the literature to which Baroness Hale draws attention in HH at paragraphs [40] and [41]. The appellant contends that the Secretary of State never properly sought or acquired the evidence and material necessary properly to assess the effect on the children.
45. In his original grounds, the appellant refers to at least 24 Detention Reviews. The early reviews focussed on what was regarded as a high risk of absconding. But later reviews express concern as to the length of detention with a diminishing prospect of return. On two occasions deputy directors authorised short periods of further detention only for the purpose of arranging release and yet the appellant remained detained. There was a suggestion of prosecution and yet none took place. On a number of occasions it was accepted that there was no prospect of removal. The judge quoted a number of these. The appellant complains that they were not consistent. It would be surprising if they had been consistent, they would not have shown independent assessment. As I read them, they do show a conscientious consideration of the need for detention. As time passed by, there was growing concern as to the justification for detention. The fact that the reviews differed in their opinion is no basis for contending that they failed conscientiously to consider its justification. Further, it becomes plain that that justification was being considered in the context of the children. The Border Agency was aware of the effect on the children and had sought advice from the local authority on that very basis.

Detention and Asylum Claims

46. The appellant also contends that by reason of his outstanding asylum claims it should have become apparent that removal was no longer imminent. There was a five-month period between the commencement of the immigration detention and the hearing of his Tribunal appeal. He had exhausted all of his appeal rights six and a half months into his detention. In its decision on 4 November 2009 the Tribunal noted that there would be no separation of family members on deportation, since none of the affected persons had any lawful right to be in the United Kingdom. It took the view that deportation would be "clearly proportionate". I regard the challenge to deportation as hopeless. In WL Lord Dyson advised that minimal weight should be given to hopeless challenges when computing a reasonable period of detention. Since the asylum appeal and human rights appeals had been dismissed, further representations which sought to repeat the human rights claim, were, when repeated in March 2011, certified as clearly unfounded, pursuant to s.94 of the Nationality, Immigration and Asylum Act 2002.
47. There remained, in my view, throughout this period, a real prospect of deporting this appellant and his family until the time came when emergency travel documents could not be obtained. Whilst the authors of some of the Detention Reviews took the view that there was a diminishing chance of deportation, there never did come a time when it could fairly be said that it was no longer possible, thereby removing the justification for detention.

The Risk of Absconding

48. The essential point before Beatson J and before this court is whether the risk of the appellant absconding was so great that no lesser measure than detention would have satisfied the public interest in ensuring that the appellant could be deported. It must be stressed that there was no risk to the safety of the public should the appellant be at liberty. His criminal offence was limited to the use of a forged passport for the purposes of returning to this country with his family. If he had absconded that would have been a criminal offence but not one affecting the safety of the public.
49. As I have already recalled, views differed as to the risk of the appellant absconding. It does not follow that because subterfuge and false papers have been used to secure admission and because he had arranged the clandestine entry of his family that there was a substantial risk that he would abscond. On the contrary, it might be argued that when he brought his family into the United Kingdom in the boot of the motor car it merely demonstrated his desire to remain with them.
50. The fact that successive immigration judges had refused bail is relevant but not determinative. Of course, immigration judges are not concerned to determine the lawfulness of detention (R (Conan) v SSHD [2004] EWHC 22 (Admin) 30). But their views as to the risk of absconding are relevant. They are an expert Tribunal and with their expertise and experience, well-placed to determine the risk of an appellant absconding. Time and again, whether the appellant was represented or not, they refused bail, despite the continuing period of detention.
51. Further, the appellant's non-cooperation in assisting in obtaining travel documents was relevant. For a considerable period of time, he refused to provide the data necessary for the application for emergency travel documents. The appellant seems to have been intent on doing anything he could to resist his deportation. His determination not to return was exemplified in his comment that he would only return in a "body bag" (recorded in the Detention Review dated 7 June 2011). But it is important not to allow these later events to colour the views which could justifiably be taken during the earlier stages of detention.
52. The most striking feature of this case lies in the appellant's cynical abuse of the immigration system. Twice he obtained substantial funds when he chose to leave the country. When he wished to return, he obtained false passports, both for himself and his family. These important facts do not of themselves justify a refusal to award damages. The appellant does not fall to be punished for this behaviour over and above the prison sentence he has served. But they are relevant to the consideration as to whether the public interest in ensuring that he was available for deportation could have been served by some lesser form of restriction. The best interests of the children would undoubtedly have been served by affording the appellant his liberty whilst restricting his movements by, for example, a curfew and electronic tagging. The question in this appeal can therefore be reduced to whether the risk of his absconding was so great that not even a lesser form of restriction could have ensured that he was available, with his family, for deportation.
53. The judge took the view that the risk of absconding was not "a risk at the highest level" [80]. It is not clear to me that that means any more than there might be worse cases. Of course, there might. But that does not assist. The question is whether the risk was so great that it justified separating this father from his children. It seems to me that there was a very substantial risk of absconding, so substantial that it could not have been alleviated by a lesser form of restriction than detention. So determined was the appellant to have his own way in defiance of immigration laws and control, it seems to me that it would have been folly to have granted him his liberty, however restrictive that might have been. Experienced immigration judges plainly thought so and it seems to me, given this appellant's background, that the risk of absconding could only be averted by detention.
54. That seems to me fully to justify the detriment to the children's best interests. Although the children's best interests were a matter of primary concern they were not determinative in a case where the risk of absconding was so high. In those circumstances, the judge was, in my view, correct to conclude that the appellant suffered no loss or damage by the unlawful exercise of the power to detain over the period between 18 May 2009 and 15 July 2011.
55. It might well be thought that when the OCC was eventually consulted in January 2010, the Border Agency's consultation was so defective, in the two respects I have identified at [39] and [40], that it amounts to a breach of the policy in the same way as the failure, in May 2009, to consult at all. Even if that is correct I would still have refused any but nominal damages. The appellant lost nothing; he would and should have been detained.
56. Although the period of detention was detrimental to the appellant's children and their separation from him had a significant effect upon them, no one is to blame, save for the appellant himself. He takes advantage of the immigration system when it suits him and ignores it when it does not. Refusal of anything but nominal damages is not designed as a punishment. But it does at least reflect the justice of this case. The importance of the rights of the children is vindicated by the acknowledgement that the failure to consult the OCC rendered the early period of his detention unlawful. But their rights were most significantly damaged by their father's own behaviour. The anxiety and distress from which they have suffered were entirely his doing. That he should claim for the damage which he himself has caused them is to abuse the law of which he seeks now to take financial advantage. I would dismiss his appeal.

Lord Justice Longmore:

57. I agree.

Lord Justice Ward:

58. I also agree.