QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (Konan)
|- and -
|Secretary of State for the Home Department
Mr Steven Kovats (instructed by Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Collins:
"It is clear to me that the appellant has no reason to believe, even if there has been an attempted coup, that her uncle was involved in any way. Her request to have time to find and produce such evidence to me is not one to which I am prepared to accede. She cannot even remember when it was she telephoned her sister or when it was that her uncle's claimed arrest took place".
"The Secretary of State also notes that you have submitted a letter purporting to be from your client's mother which you say supports her claim that her life is in danger. As this letter is in French and as you have provided no translation the Secretary of State is unable to attach any weight to it as its contents are unknown. The Secretary of State takes the view that the onus is on your client to show that a document she seeks to rely upon can be relied on".
I find this reasoning extraordinary. Quite apart from the fact the French is hardly an unusual language, it would have been appropriate to have asked for a translation within X days. No doubt competent solicitors would have sent one initially, but to ignore the letter because it was in French after a delay of 2 months is wholly unacceptable. Mr Kovats was not inclined to support the reasoning, but submitted that a rejection would have been inevitable even if the letter had been considered as it should have been. Since the solicitors had not put forward any confirmation of the arrest of Captain Coulibaly, this may be right, but I cannot help believing that the rejection was dealt with in the manner it was because detention on the basis of an imminent removal had already occurred. The claim relating to Thelma's paternity was rejected because:-
"… there is no evidence that Mr Duranty is related (sic) to your client as claimed or that he is present in the United Kingdom. He is not mentioned as the father on the child's birth certificate".
The solicitors had failed to provide any supporting evidence from Mr Duranty and so that reasoning cannot be regarded as wrong.
"On Thursday 19 September 2002 our above named client's uncle Captain Coulibaly Fabien (sic) who is also the personal bodyguard of General Guei (former Military Head of State) was killed when General Guei himself was assassinated along with his wife and other members of his family. Once again Captain Coulibaly's relatives have also been massacred in what the Ivorian government has called a failed attempted coup.
Since that time the situation in Ivory Coast is described as frightening and the country is being plunged into civil war, while opposition members are being killed in Abidjan and other cities by gendarmes loyal to the government".
Temporary admission was requested since Jacqueline had "always complied with … reporting conditions and has promised to comply with the same conditions if released".
"Your department's letter of June 18 implies that she would have a human rights claim if Mr Duranty is indeed the father, so give the couple a chance to prove it".
"There has been no application from Ms Konan to remain in the United Kingdom on the basis of her relationship with Mr Duranty".
This is a somewhat remarkable observation in the light of the letter of 11 June 2001 in which it was stated that to remove her and Thelma would breach Article 8 because of her relationship with Mr Duranty. The Minister goes on to say that the DNA tests could be carried out while the claimant was in detention.
"Information relating to Captain Coulibaly, his activities on behalf of General Guei and his death are widely available on the internet".
I presume that sentence was thought to have some relevance to the contention that no independent supporting evidence had been submitted to show the claimed relationship and to the reliance of the defendant on the findings of the adjudicator. The first and most obvious comment is that if the information was widely available on the internet it is somewhat surprising that the defendant was unaware of it on 14 October. Secondly, the claimant had raised the issue of Captain Coulibaly back in November 2001 well before he had been involved in the attempted coup of 19 September 2002 and killed. In relation to Mr Duranty, the defendant continued to assert that no evidence had been produced to establish that he was Thelma's father. Inter alia, he said this: -
"No explanation has been given about how Mr Duranty could have fathered Ms Konan's child given that she allegedly arrived in the United Kingdom only two months prior to the birth of the child and spent only a limited period in France prior to her arrival".
There was no basis for the assumption that seems to have been made that Thelma could only have been conceived in France. The letter goes on to state that no arrangements had yet been made for the DNA testing but that, if the relationship was proved, further consideration would be given. Still, no release from detention was considered to be appropriate.
" … pending:-
(a) a decision whether or not to give [removal] directions;
(b) his removal in pursuance of such directions".
The power to detain pending removal is not dependent on a fear of absconding or of any other misconduct by the person in question. Provided it is exercised for the purpose of removal, it is lawful. It must be exercised reasonably, but reasonableness in this context relates to whether removal can be achieved within a reasonable time: see R v Governor of Durham Prison ex parte Singh  1 W.L.R. 704 and Tan Te Lam v Superintendent of Tai A Chau Detention Centre  AC 97 as applied in R (Saadi) v Secretary of State for the Home Department  4 All ER 785.
In the White Paper entitled Fairer, Faster and Firmer – A modern Approach to immigration and Asylum published in July 1998 the Government made it clear that, whilst regrettable, the power to detain must be retained in the interests of maintaining an effective immigration control. However, the White paper gave a commitment that detention would only be used as a last resort and that, wherever possible, we would use alternatives to detention (see 38.19 and Chapter 39). The White Paper went on to say that detention would most usually be appropriate.
to effect removal;
initially to establish a person's time identity or the basis of their 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.
These criteria were amended by means of an answer to a Parliamentary Question about the Oakington Reception centre. Ministers made it clear that in addition to existing detention criteria, asylum applicants will be detained at Oakington where it appears that their application can be decided quickly, including those which may be certified as manifestly unfounded. See Paragraph 38.3.1 about Oakington.
In all cases detention must be for the shortest possible time. The aim should be to detain at the end of the process. It is not an effective use of detention space to detain people for lengthy periods of it would be practical to effect detention in the process once any rights of appeal have been exhausted. In this context, it should be borne in mind that a person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions, if released, than one who is removable"
It is important that in detaining a person it can be shown that he is being detained with a view to his removal (not necessarily deportation). Detention for other proposes (such as deterrent to others where detention is not necessarily for the purposes of removal of the individual concerned) is not compatible with Article 5. It is important for Human Rights Act 1998 purposes that it can be shown that progress is being made towards removal. This is not a change: this already needs to be shown in order to satisfy the courts that 1971 Act detention powers are being used properly.
Article 5(4) states that everyone who is deprived of his liberty shall be entitled to take proceedings by which the lawfulness of his detention is decided speedily by a court. This Article is satisfied by a detainee's right to challenge the lawfulness of a decision to detain by habeas corpus or judicial review in England, or by judicial review in Scotland".
"38.3 Factors influencing a decision to detain.
There is a presumption in favour of temporary admission or temporary release. 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. All reasonable alternatives to detention must be considered before detention is authorised. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified. There are no statutory criteria for detention, and each case must be considered on its individual merits. The following factors must be taken into account when considering the need for initial or continued detention. The list is not exhaustive neither is it in any order of priority.
what is the likelihood of the person being removed and, if so, after what timescale?
is there any evidence of previous absconding?
is there any evidence of a previous failure to comply with conditions of temporary release on bail?
has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry).
is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave etc)
what are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment?
what are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?
is the subject under 18?
has the subject a history of torture?
has the subject a history of physical or mental ill health?
(see also sections 38.5 – detention forms and procedures and 38.7 – special cases".
"38.5.2 Form IS 91R "Reason for Detention"
This form is in three parts and is served on the subject upon his detention. The IO must complete all three sections of the form. The IO is required to specify the power under which a person has been detained, the reasons for detention and the basis upon which the decision to detain was made. The detainee must also be informed of his bail rights and the IO must sign, both at the bottom of the form and overleaf, to confirm the notice has been explained to the detainee and that he has been informed of his bail rights.
It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure they are always justified and correctly stated. A copy of the form must be retained on the caseworking file. If any of the reasons given on the form IS91R change, it will be necessary to prepare and serve a new version of the form".
The decision to detain an entire family should always be taken with due regard to Article 8 of the E.C.H.R. (see 184.108.40.206). Families may only be detained to effect removal, and detention should be planned to be effected as close to removal as possible so as to ensure that families are not normally detained for more than a few days. Family accommodation should be pre-booked by arrangement with DEPMU. As a matter of policy we should aim to keep the family as a single unit. However, it will be appropriate to separate a child from its parents if there is evidence that separation is in the best interests of the child. The local Social Services department will make this decision. In such cases, prior arrangement and authority will be required from DEPMU and the child's parents should provide agreement in writing. As long as the child is taken into care in accordance with the law and following a decision of a competent authority Article 8 of the E.C.H.R. will not be breached (see 220.127.116.11). Its hound be noted that there are currently only a limited number of places for the detention of children as part of family units in the family suites at Tinsley House but the provision is set to rose with more family accommodation in the new detention centres planned for 2001".
Evidence was put forward in R (Nadarajah) v Secretary of State for the Home Department by Mr Taylor, a senior executive officer in the Immigration Service. His statement, which was put before me, is dated 2 July 2002. That case concerned removal under the Dublin Convention, but it has not been suggested that the principles applicable to detention were any different in other removal cases. In Paragraphs 14 and 15 of his statement, Mr Taylor says this:-
"14. In the event that the Claimant's solicitors had lodged a second application for judicial review with the Administrative Court Offices than any removal directions then in place would have been cancelled. The Claimant's removal would no longer be imminent and his continued detention would, in all the circumstances, no longer have been justified. This action would have been fully compliant with the guidelines set out in Chapter 38 of the Operational Enforcement manual. For the sake of clarity, I can confirm that the whole of Section 38.14 has been omitted as this is a section dealing with national security case only and is therefore classified as restricted. I also confirm that the telephone number of the DSPU has been omitted from Section 38.15 as this is also restricted, being a telephone number for internal use only).
15. It is the Defendant's experience that judicial review challenges to decisions in third country cases are, for the most part, brought only after transfer arrangements have been agreed between the U.K. and the receiving state and, usually only a matter of 24 – 48 hours before the projected removal of the Claimant to the safe third country. Immigration solicitors are also well aware that an application for judicial review suspends the removal of the Claimant and it would be most unlikely that detention would be maintained throughout projected judicial review proceedings".
"Detention is only used where there is no reasonable alternative available. It has been decided that you should remain in detention because (tick all boxes that apply)".
This is in bold print and is intended to draw the detainee's attention to the reasons why he or she is being detained. The form then sets 6 reasons for detention followed by 14 factors which (apart from number 14 which relates to fingerprinting and is a reason in itself) can be relevant to one or more of the 6 reasons. The 6 reasons are as follows:-
a. You are likely to abscond if given temporary admission or release.
b. There is insufficient reliable information to decide on whether to grant you temporary admission or release.
c. Your removal from the United Kingdom is imminent.
d. You need to be detained whilst alternative arrangements are made for your care.
e. Your release is not considered conducive to the public good.
f. I am satisfied that your application may be decided quickly using the fast track procedure at Oakington Reception Centre.
The factors which could conceivably be relevant to removal cases are as follows:-
1.You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place.
2. You have previously failed to comply with conditions of your stay, temporary admission or release.
3. You have previously absconded or escaped.
5. You have used or attempted to use deception in a way that leads us to consider you may continue to deceive.
6. You have failed to give satisfactory or reliable answers to an Immigration Officer's enquiries.
7. You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the United Kingdom.
8. You have previously failed or refused to leave the United Kingdom when required to do so.
11. You are excluded from the United Kingdom at the personal direction of the Secretary of State.
12. You are detained for reasons of national security …
"There are two further important aspects of the Secretary of State's policy in respect of detention where removal is imminent:
(i) removal will not be treated as imminent once proceedings which challenge the right to remove have been initiated and (ii) when deciding whether the removal is imminent the immigration service will pay no regard to a statement by the immigrant, or those representing the immigrant, that proceedings challenging the right to remove the immigrant will be initiated".
- The applicant arrived at Waterloo International terminal but failed to seek asylum on arrival. She arrived from a safe third country but failed to claim asylum there.
- The applicant has no close community ties, no history of settled employment in the United Kingdom and no close family in the country.
- The applicant used a French passport to which she was not entitled to enter the United Kingdom. Such gross deception illustrates that she is willing to use unlawful means to remain in this country and is unlikely to comply with any bail conditions".
This is misleading. No reliance had been placed on the deceptive means of entry in the IS91R and no reference is made to her compliance throughout with conditions of temporary admission. No reference is made to her contention that her child's father was in the United Kingdom so that she had no incentive to fail to comply with bail conditions. Further, it is difficult to follow the relevance of the first reason to a bail application.
"Our grounds for maintaining detention may not be strong enough to counter any argument put by representatives as she was detained in order to effect her removal. No previous history of absconding /child etc".
"… this right must be seen as independent of the possibility of applying to a court for release on bail".
Paragraph 18.104.22.168 of the defendant's own policy recognises that judicial review is the means by which the lawfulness of a detention may be challenged. To suggest, as Mr Kovats does, that a finding that the claimants were unlawfully detained at least prior to 15 November would necessarily impugn the decisions of the adjudicators who refused bail is nonsense. The one thing that is clear is that neither adjudicator considered nor did either have the material to decide whether the detention was unlawful. In truth, as I have said, while no doubt concerns about the lawfulness of the detention, if the issue were raised, might weigh in a decision on bail, the adjudicators had no power to decide that issue.
"Families may only be detained to effect removal, and detention should be planned to be effected as close to removal as possible so as to ensure that families are not normally detained for more than a few days".
This detention was for over 6 months. Thus I do not think those submissions of Miss Harrison do more than emphasise what the defendant's policy already expresses, namely that where families and so children are involved, detention must be for as short a time as possible.
MR JUSTICE COLLINS: There is one typo that I have spotted which was not spotted before. It is in paragraph 30, just after the quotation. There is a sentence which at the moment begins, "Nor to suggest." The "nor" is superfluous. It should be, "To suggest".
MISS CRONIN: My Lord, can I say that Miss Harrison, who was of course the counsel in this case, apparently faxed to chambers this morning some -- I am not sure whether it was more than one correction and also the order, and it has not yet arrived.
MR JUSTICE COLLINS: She sent that to my clerk yesterday.
MISS CRONIN: I am delighted.
MR JUSTICE COLLINS: I have incorporated the amendments. Apart from the typos there was one substantial matter which -- because I was informed, as I recall, that the appeal to the adjudicator had been adjourned pending this application, but that appears to have been wrong. In fact the claimant has been granted refugee status now.
MISS CRONIN: Well, my Lord, I am so grateful that that has been done.
MR JUSTICE COLLINS: But that is now in the judgment.
MISS CRONIN: Thank you.
MR JUSTICE COLLINS: As far as the order is concerned, the declaration in the terms that is asked for seems to me to be appropriate. Miss Grange, have you any comment on the form of the order?
MISS GRANGE: My Lord, I have not actually seen it.
MR JUSTICE COLLINS: You have not seen it. Do you not have a copy of it?
MISS CRONIN: My Lord, I do not have it at all, it had not arrived.
MR JUSTICE COLLINS: I see. Well, what I suggest is, although the judgment speaks for itself, that a declaration is the appropriate relief and it would be a declaration that the detention of the claimants was unlawful from 24th June 2002 until their release on 23rd December 2002.
MISS GRANGE: Yes.
MR JUSTICE COLLINS: I do not think you can quarrel with that, can you?
MISS GRANGE: No.
MR JUSTICE COLLINS: There is an application for costs, which, again, I do not think you can resist. Presumably you are legally aided, are you?
MISS CRONIN: My Lord, yes, as I understand it.
MR JUSTICE COLLINS: You will have the usual order for detailed assessment if not agreed and detailed assessment of your Legal Aid costs.
MISS GRANGE: My Lord, can I just address you on one matter.
MR JUSTICE COLLINS: Yes.
MISS GRANGE: It is relating to leave to appeal. Because of the embargo on this judgment in relation to the clients we have not been able to take instructions yet on that point. I would ask your permission that we have 14 days in which to take instructions.
MR JUSTICE COLLINS: It is a bit pointless because the Court of Appeal has decided, as they have. It binds me. So it seems to me that the only sensible thing for you to do, if you want to take this further, is to ask the Court of Appeal.
MISS GRANGE: My Lord.
MR JUSTICE COLLINS: I would refuse leave to appeal in any event for the obvious reasons.
MISS GRANGE: Absolutely, absolutely. My Lord, I am grateful.
MR JUSTICE COLLINS: I think that is the sensible thing. What is the normal time for reapplying for the Court of Appeal?
MISS GRANGE: I think it is 14 days.
MR JUSTICE COLLINS: It is 14 days. That gives you enough time to think about whether you want to try to take this further.
MISS GRANGE: I am grateful, thank you.
MISS CRONIN: My Lord, can I say, one further matter, and that is the damages hearing which is --
MR JUSTICE COLLINS: Yes.
MISS CRONIN: My Lord, can I ask that just a standard set of directions -- I think 14 days for us and 14 days thereafter too.
MR JUSTICE COLLINS: Yes. Are you asking for longer than 14 days to serve any further evidence?
MISS GRANGE: No, my Lord.
MR JUSTICE COLLINS: I do not imagine actually there is any, is there?
MISS GRANGE: I would not have thought so.
MR JUSTICE COLLINS: Damages will, frankly, be assessed on the basis of the length of time and -- no, the only matter that may be material I suppose, and I have not really had to go into it, is the effect on the claimants and more importantly whether she did in fact have a miscarriage when she was first detained, because there is evidence which could point in that direction.
MISS GRANGE: Yes.
MR JUSTICE COLLINS: But it is not entirely clear and that, I suppose, possibly could affect quantum. I doubt it because I have decided that that part was not unlawful, so I do not think that that is likely to be a material issue.
MISS CRONIN: My Lord, yes. I am not obviously in a position to assist you either way, but certainly I understand from Miss Harrison that she thought that 14 days would be sufficient time.
MR JUSTICE COLLINS: I will make the usual order. Any further evidence to be relied on by the claimants must be served within 14 days of today. Defendant has 14 days thereafter to serve any further evidence. The hearing in respect of the damages claims should be fixed some time after -- I mean ideally this term, but certainly not before the beginning of March.
MISS CRONIN: My Lord, yes.
MR JUSTICE COLLINS: I would have thought that half a day would be sufficient. Do we want to keep it here in the Administrative Court or do we want to send it to the Queens Bench?
MISS CRONIN: I think it would be sensible to keep it here.
MR JUSTICE COLLINS: This now a personal injury -- well, personal injury, it is a slightly -- no, it is not personal injury, it is damages for unlawful imprisonment really. I suppose it can stay here.
MISS CRONIN: My Lord, that would be our preferred option I think.
MR JUSTICE COLLINS: All right. Time estimate half a day. It may well be less. I suspect it may well disappear with a bit of sense on both sides.