ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JAY
Strand, London, WC2A 2LL
B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISON
LORD JUSTICE McCOMBE
| THE QUEEN ON THE APPLICATION OF IDIRA
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Thomas Roe QC and Mathew Gullick (instructed by Government Legal Department) for the Respondent
Hearing date: 02/11/2015
Further written submissions: 03/11/2015 & 05/11/2015
Crown Copyright ©
Master of the Rolls:
"The normal expectation is that the prison beds made available by NOMS will be used to hold TSFNOs before any consideration is given to transferring such individuals to the IRC estate. This position will apply if there are free spaces among the beds provided by NOMS and even if the criteria or risk factors [making detention in prison necessary] are not presented by the FNOs concerned."
"The overall pressures on the system, both physical and financial, conspired to create a state of affairs whereby [the respondent] needed to purchase a number of bed spaces from NOMS and, having done so, those bed spaces needed to be kept as full as possible."
The issues arising on the appeal
The first issue: is immigration detention in a prison rather than an IRC generally contrary to article 5(1)?
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
The Strasbourg jurisprudence
"it follows from the very aim of Article 5(1) that no detention that is arbitrary can ever be regarded as "lawful". The Court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the "detention" of a person as a mental health patient will only be "lawful" for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution authorised for that purpose. However, subject to the foregoing, Article 5(1)(e) is not in principle concerned with suitable treatment or conditions."
"although the regime at Oakwood was more liberal and, in view of the improvement in his mental state, more conducive to his ultimate recovery, the place and conditions of the applicant's detention did not cease to be those capable of accompanying "the lawful detention of a person of unsound mind". It cannot therefore be said that, contrary to Article 17, the applicant's right to liberty and security of person was limited to a greater extent than that provided for under Article 5(1)(e)."
"One general principle established in the case law is that detention will be "arbitrary" where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Art.5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention."
"To avoid being branded as arbitrary, therefore, such detention must be carried out in good faith. It must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that:
'[T]he measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country'
and the length of the detention should not exceed that reasonably required for the purpose pursued."
"given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with an escalating flow of huge numbers of asylum-seekers, it was not incompatible with Art.5(1)(f) of the Convention to detain the applicant for seven days in suitable conditions to enable his claim to asylum to be processed speedily. Moreover, regard must be had to the fact that the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers."
The judge's approach to the Strasbourg jurisprudence
"74. Mr Denholm also relies on paragraph 17 of the judgment of Bean J in Rozo-Hamida [sic], where he refers to the views of CPT (see paragraph 16 above):-
'Although this opinion is not binding on me, the views of the CPT are entitled to great respect. Certainly it would be disturbing to most people's sense of fairness that an immigration detainee who has not been convicted of any criminal offence should be confined in a prison save in the most exceptional circumstances'.
75. Approaching the issue at this stage without reference to binding Court of Appeal authority, my approach would be very similar. My sense of fairness is simply disturbed. However I am not sure that holding immigration detainees in prison requires "the most exceptional circumstances". It does require a sound and proper justification within the context of Article 5(1)(f), and the policy matrix which the Defendant has devised and implemented. A policy which either systematically or invariably (it matter not which for this purpose) has a consequence of holding those in the Claimant's position in prison, rather than in an IRC, cannot be properly justified. Moreover, the implementation of such a policy severs the requisite link which must exist in cases such as these to justify detention under Article 5. The severance of that link is conclusively demonstrated in the Claimant's case by the fact that he was assessed as being suitable for detention in an IRC on 3rd July 2013. On balance, therefore, if the matter were free from authority, I would hold that the Defendant's incarceration of the Claimant between 3rd July 2013 and 14th March 2014 was in breach of his rights under Article 5(1)(f) of the ECHR; and a sufficiently serious breach to sound in damages."
My conclusion on the article 5(1)(f) issue
"Mr Roe accepts that, in accordance with decisions of the Strasbourg court, detention will not be lawful if it is "arbitrary", which might include detention in bad faith, or not genuinely for the purpose of the relevant exception, or where there is not "some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention" (Saadi v United Kingdom  47 EHRR 17, paras 68-74). However, none of the cases relied on supports a claim based solely on an irregularity in the selection of the place of detention, at least in the absence of any evidence that the conditions of detention were unduly harsh."
"In this as in other contexts, the Convention has not infrequently resorted to a concept of 'arbitrariness' to explain what it means by unlawfulness. The natural meaning of this English word connotes some quite fundamental shortcoming. But it is also clear that, when used at the international level, its sense can depend on the context."
'of the 16 Länder which make up the Federal Republic of Germany, 10 do not have specialised detention facilities, with the result that third-country nationals awaiting removal are detained in prisons and subject, in some cases, to the same rules and restrictions as ordinary pensioners.'
The second issue: was the judge right to hold that he was bound by Krasniqi?
The third issue: was the judge right to hold that the detention of the appellant was not unduly harsh?
Overall conclusion on the appeal
THE COSTS OF THE RESPONDENT'S NOTICE
"[h]eavy costs sanctions should…… be imposed on parties who behave unreasonably in refusing to agree extensions of time": Denton at para 43.
President of the Queen's Bench Division
Lord Justice McCombe