QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF AMIRTHANATHAN||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS LAING (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Thank you for your letter dated 31st October 2002 via fax ...
"In that, you have informed our client to attend for a decision interview at your office on 6th November 2002.
"As you have mentioned in your letter that the interview is a decision interview we kindly request you to forward a copy of the decision that you have reached on our client's asylum claim.
"As you are aware our client's Human rights application dated 5th June 2001 and subsequent one stop notice dated 19th December 2001 are still pending consideration under [by] the secretary of state.
"If the secretary of state feels that our client's HRA [claim] should be refused then we remind you that Mr Edward [the claimant] has the right of appeal against such decision under your policy dated 19th July 2001.
"We therefore appreciate your reply before 6th November 2002."
"Further to your letter of 01.11.2002 we trust that you understand that the purpose of the interview is to serve the decision, thus we cannot provide you with a copy of the decision letter prior to the actual interview.
"Please ensure that your client attends."
"In accordance with your policy dated the 23rd August 2001, our client is entitled to a right of appeal and our client wishes to exercise his right of appeal under section 65 of the Immigration and Asylum Act 1999. Please forward us the appropriate forms for us to complete.
"We would be grateful if you could cancel any removal directions set until a decision has been made on this representation."
Also on 6th November they wrote a second, lengthy letter requesting the claimant's release from detention (see the letter starting at page 46 of the court bundle). I do not need to read all of that letter but it is there for reference in case it needs to be referred to in the future. It will suffice if I draw attention in particular to the first full paragraph, in which reference is made to a telephone conversation on the evening of 6th November between the author of the letter and a Ms Askin of the Home Office, which continues:
"We explained to her that although our client's Human Rights claim is refused he is entitled to a right of appeal. We also explained to her that the Secretary of State has acknowledged in his refusal letter that our client is entitled to a right of appeal and we actually read the 25th paragraph of the Refusal letter to her. After explaining his legal position, we asked her the reason for detention. She said that they are going to remove the client. We asked her whether they have set any removal direction in this case and she replied no, but is trying to document the client."
"The decision on your clients [sic] detention will be taken by the Chief Immigration [Officer] later today."
"You have asked for the reasons why your client named above has been detained.
"Your client's asylum application has been refused, as has his HRA claim. It is noted that you intend on his behalf to exercise his right of appeal against this decision. However, we are currently pursuing the matter of arranging a Travel Document for your client, to be used if the appeal you propose fails. To this end, he will be interviewed on 14.11.02 by an officer of the Sri Lankan High Commission. I am not satisfied in the current circumstances that he would voluntarily attend the Sri Lankan High Commission for this interview.
"When this is done, and the appeal your client wishes to make is set in motion by your returning the documents sent to you, further consideration will be given to the situation of your client. Please be assured that his detention will be reviewed by senior officers on a regular basis."
"We asked him what does the fax means [sic]:
"Does this means [sic] he is detained to facilitate the Sri Lankan High Commission interview?
"He said that they have stated this very clearly in their fax that he will not voluntarily attend the Sri Lankan High Commission for interview.
"That means he is detained to facilitate the Sri Lankan High Commission interview?
"He asked me why are you trying to take it from my mouth?
"We told him it was not very clear in the fax and before we file a Judicial Review we want to clarify this?
"The officer confirmed 'Yes'."
"I am sure that you will not accept this view, but you can certainly understand how it might be held, that your client has consistently sought to take advantage of the asylum process to prolong his unlawful residence in this country ...
"Were we to grant your client temporary admission, it would be on the basis that he attended for a documentation interview with the Sri Lankan High Commission. He has intimated to us, and you have confirmed this in your fax, that your client would refuse to speak to the Sri Lankan High Commission. You and he have stated that your client would not comply with the terms of temporary admission, and detention is the only avenue left open to us, in order to effect removal. I accept that an appeal will take place in due course, however your client has been unsuccessful in the past, failed to attend a previous interview on the 31st of October and has suggested that he will not assist in the documentation process unless compelled to do so. Maintaining detention is, in our view, therefore justified."
"The next scheduled detention review took place on the 7th of November and was conducted by CIO Mr Ben Kennedy. The decision, agreed by the duty Inspector, was to maintain detention. It was noted by Mr Kennedy that the passenger would be unlikely to present himself willingly at the interview arranged with the Sri Lankan High Commission. On the 12th of November the passenger's representatives lodged their client's appeal by fax ..."
Paragraph 8 reads:
"As the duty Casework CIO on the 13th of November CIO Helen Hutcheson reviewed this correspondence. As the passenger had now appealed he was at this time not removable."
Miss Hutcheson also considered the fact that he had every intention of frustrating the documentation process and took this as an indication that he would be unlikely to comply with any arrangements to remove should his appeal fail. She also considered the fact that should he remain detained, his appeal would be expedited. Paragraph 9 reads:
"As to the letter of 8 November 2002, I appreciate that attendance at the Sri Lankan High Commission cannot be imposed as a condition of temporary admission. I accept that the letter is unfortunately phrased, but temporary admission could have been granted if Mr Amirthanathan would comply voluntarily with the documentation process. The decision to detain was largely based on this ground and was not a condition of temporary admission. The letter should have reflected the fact that, had he decided to comply, then this would have been taken into account."
Paragraph 10 reads:
"Notwithstanding this, however, CIO Ms Hutcheson considered that, in all likelihood, the appeals process, even if expedited, could take some months and that, faced with the pressures on detention spaces, Chief Immigration Office's bail would be an appropriate alternative. She therefore wrote to [the claimant's representatives] on the 13th of November [that letter appears at page 94 of the court bundle] advising them that the interview with the Sri Lankan High Commission would not take place and that we would consider an application for CIO's bail. This letter was faxed to the representatives on the 13th of November. The next scheduled detention review took place on the 15th of November and was conducted by CIO Mr Ben Kennedy who took the view that granting of temporary admission would be more appropriate and, with the concurrence of the duty Inspector, the passenger was duly released."
"A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.
"So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, [as to his employment or occupation] and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer."
"(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 a procedure prescribed by law: ...
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 ...
"(4)Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful." [My emphasis]
The Secretary of State's Policy on Detention
In the White Paper 'Fairer, Faster and Firmer -- A Modern Approach to Immigration and Asylum' published in July 1998 the Government made it clear the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention ... The White Paper went on to say that detention would most usually be appropriate:
. to effect removal;
. initially to establish a person's identity or basis of claim; or
. where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release ..."
"In all cases detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. However, a person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable."
"Detention can only lawfully be exercised under these provisions where there is a realistic prospect of removal."
"1) There is a presumption in favour of temporary admission or temporary release.
2) There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3) All reasonable alternatives to detention must be considered before detention is authorised.
4) Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
5) There are no statutory criteria for detention, and each case must
be considered on its individual merits.
6) The following factors must be taken into account when considering the need for initial or continued detention."
"In English law every imprisonment is prima facie unlawful and ... it is for a person directing imprisonment to justify his act."
At page 111 B, Lord Scarman noted that although there are procedural differences between habeas corpus and judicial review, these should not deflect from the court's approach to matters of substance. At page 111 E, Lord Scarman noted, "the jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction." At page 111 H, Lord Scarman resoundingly rejected any suggestion that our law fails to protect a foreign national with the same rigour. He said:
"Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection."
Finally, at page 112 A to C, Lord Scarman noted that the initial burden is upon an applicant, but that it is transferred to the executive in order to demonstrate that there is a lawful basis for detaining the person concerned.
"One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the seventeenth century into 'the most efficient protection yet developed for the liberty of the subject' ... The court's jurisdiction was recognised from early times as extending to any part of the Crown's dominions:
'... for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted.' [a quotation from Blackstone] ..."
Paragraph 60 reads:
"The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that:
'... no member of the executive can interfere with the liberty ... of a British subject except on the condition that he can support the legality of his action before a court of justice' ...
"This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court ... It applies in war as in peace ..."
The First issue
"I confess to having found this the most difficult of the issues before me. It is common ground that the Home Secretary had power to detain the Claimant, under paragraph 16(2) to Schedule 2 to the Immigration Act 1971. The exercise of that power does not depend either expressly or by implication on the existence of a reasonable fear that the detainee will abscond if not detained: it depends on the existence of reasonable grounds for suspecting that he is someone in respect of whom removal directions may be given ... Detention may then be authorised pending a decision to give such directions and his removal in pursuance to such directions if they are given."
Paragraph 51 reads:
"It is also common ground that the power to detain must be exercised reasonably and in accordance with the stated policy of the Home Secretary. His policy states that detention must be used sparingly and for the shortest period possible, although this is as much a statement of the legal position as a statement of policy."
"I read this to mean that in the normal case, the institution of judicial review proceedings for the second time in a third country case will automatically lead to a suspension of removal; in which case, removal not being imminent, detention for the purposes of removal alone is not justified. This practice means that a genuine statement by the applicant's solicitors that judicial review proceedings are to be instituted is ignored, as it was in the present case. The Claimant's solicitors had stated in their letters of 25 February 2002, both of which were faxed to the South East Port Surveillance Team, that they had instructions to seek judicial review. In addition, at the Claimant's interview on 27 February, Ms Matthews reiterated that she intended to issue a further judicial review application, and complained that had she been warned that the Claimant would be detained, she would have issued proceedings before the interview. It follows from Mr Taylor's evidence that had she done so, the Claimant would not have been removed to Germany until the determination of the proceedings, and he would not have been detained~...
"In these circumstances, in my judgment the Claimant's removal was not imminent when he was detained, and if the policy had been applied he would not have been detained. There was therefore a failure to apply the policy ..."
The Second Issue
"The court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the state with his or her right to liberty. Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3) which is intended to minimise the risk of arbitrariness and ensure the rule of law ..."
"The jurisprudence of the European Court of Human Rights indicates that there are various aspects of Art 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that Article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under Art 5(1) [a point I have mentioned]. It will thus give rise to an enforceable right of compensation under Article 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming the detention is lawful under domestic law, it nevertheless complies with the general requirements of the Convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law: see Arts 8 to 11 of the Convention. They include the requirement that the domestic law must be sufficiently accessible to the individual and that it must be sufficiently precise to enable the individual to foresee the consequences of the restriction: Sunday Times v United Kingdom (A/30)(1979-80) 2 EHRR 245; Zamir v United Kingdom (1985) 40 DR 42, paragraphs 90 to 91. The third question is whether, again assuming the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate: Engel v Netherlands (1979-1981) 1 EHRR 647, paragraph 58; Tsirimis v Greece (1998) 25 EHRR 198, paragraph 56."
"127. The notion of 'lawfulness' under Article 5(4) has the same meaning as in paragraph 1, so that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein, and the aim of the restriction permitted by Article 5(1). The scope of the obligations under Article 5(4) is not identical for every kind of deprivation of liberty; this applies notably to the extent of the judicial review afforded. Nonetheless, it is clear that Article 5(4) does not guarantee a right to judicial review of such breadth as to empower the Court on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision making authority. The review, however, should be wide enough to bear on those conditions which are essential to the 'lawful' detention of a person according to Article 5(1).
"128. It follows from the requirements of Article 5(1) in cases of detention with a view to deportation that Article 5(4) does not demand that the domestic court should have the power to review whether the underlying decision to expel could be justified under national or Convention law.
"129. The notion of 'lawfulness' in Article 5(1)(f) does not refer solely to the obligation to conform to the substantive and procedural rules of national law; it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5. The question therefore arises whether the available proceedings to challenge the lawfulness of Mr Chahal's detention and to seek bail provided an adequate control by the domestic courts."
"38. The Court notes that it is common ground that the applicants were arrested so that they could be deported from Belgium. Article 5(1)(f) is thus applicable in the instant case. Admittedly the applicants contest the necessity of their arrest for that purpose. However, Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example, to prevent his committing an offence or fleeing. In this respect, Article 5(1)(f) provides a different level of protection from Article 5(1)(c): all that is required under subparagraph (f) is that 'action is being taken with a view to deportation'. [Reference is then made to the judgment in Chahal at paragraph 112]
"39. Where the 'lawfulness' of detention is an issue including the question whether 'a procedure prescribed by law' has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness ..."
"Detention for the purpose of inquiring whether he must or should be granted asylum is permitted by Article 5(1)(f) and there is no provision in that paragraph requiring it to be shown that detention is necessary for that purpose. This is to be contrasted with paragraph 1(c) of Art 5, which excludes from the prohibition of detention a case 'when it is reasonably considered necessary to prevent his committing an offence or fleeing'."
And at paragraph 37, Lord Slynn said:
"On the face of it, it is not a pre-condition of the power to detain that detention should be 'necessary' to prevent an unlawful entry -- necessary in the sense that no other procedure would be sufficient to allow an investigation of the basis of the claim for asylum."
"I would accordingly hold that subject to any question of proportionality, the action taken here was 'to prevent [a person] effecting an unauthorised entry into the country' within the meaning of Article 5(1)(f)."
At paragraph 44, Lord Slynn said:
"There remains the issue whether, even if detention to achieve speedy asylum decision-making does fall within Article 5(1)(f), 'detention was unlawful on grounds of being a disproportionate response to the reasonable requirements of immigration control'."
Paragraph 45, Lord Slynn continued:
"In Chahal v United Kingdom ... the European Court of Human Rights say that the lawfulness of detention had to be seen against the substantive and procedural rules of national law 'but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness'. I do not see that either the methods of selection of these cases (are they suitable for speedy decision?) or the objective (speedy decision) or the way in which people are held for a short period (ie short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate ..." [My emphasis]
At paragraph 47, Lord Slynn continued as follows:
"It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. Accepting, as I do, that the arrangements made at Oakington provide reasonable conditions, both for individuals and families, and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Far from being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here." [My emphasis]
"What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the State to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The State's power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means ..." [My emphasis]
"Accordingly, the function of the court in a case such as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr Samaroo's rights to respect for his family life on the one hand [since that was a case concerning Article 8 of the ECHR] and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment. In considering the particular factors to which the court will have regard in deciding to what extent (if at all) to defer to the opinion of the Secretary of State. I have been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice ... of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors.
a) The nature of the Convention right: is the right absolute or (as in the case of Art 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter.
b) The extent to which the issues require consideration of social,
economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable.
c) The extent to which the court has special expertise, for example in relation to criminal matters.
d) Where the rights claimed are of especial importance, a 'high degree of constitutional protection' will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights of freedom of expression and access to the courts."
"Our task is not to cast around in the European Human Rights Reports like blackletter lawyers seeking clues. In the light of s.2(1) of the Human Rights Act 1998 it is to draw out the broad principles which animate the Convention."
The second authority, which seems to me to be relevant, is The Queen on the application of Prolife Alliance v BBC  EWCA Civ 297 2002 All ER 756, where at paragraph 34 of his judgment Laws LJ said this:
"The need to make good an autonomous human rights jurisprudence is promoted by a further consideration. Treating the ECHR text as a template for our own law runs the risk of an over-rigid approach. Travelling through the words of provisions like Article 10(2), with stops along the way to pronounce that this or that condition is met or not met, smacks to my mind of what Lord Wilberforce once condemned as the 'austerity of tabulated legalism' (see Ministry of Home Affairs v Fisher ...  AC 319, at 328) [I understand that quotation 'austerity of tabulated legalism' in turn itself originates with the late Professor de Smith in a book written in 1964]. I accept of course that such a wintry process will be tempered by what I have called ... the strong pragmatic philosophy of the Strasbourg court. Even so, while great respect is to be paid to the way in which the ECHR is framed, and therefore to the structure of provisions such as Article 10, I think the court's duty in confronting the claims of free speech, and the claims that may be ranged against it, in a context like that of the present case is very far distant from any exercise of textual interpretation. We are dealing here with bedrock principles ..."