England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Wednesday, 13th December 2006

1. MR JUSTICE CALVERT SMITH: These two cases have been heard together since the claims involved similar considerations of law. Mr Vovk seeks a declaration that his detention by the defendant was unlawful and damages, following the grant of permission to bring the claim by the Single Judge. Mr Datta's application for permission to claim for judicial review was adjourned to be heard with the claim of Mr Vovk. He too seeks a declaration that his detention by the defendant was unlawful.
2. The history of the case is as follows. Mr Vovk is an Ukrainian national. He entered the United Kingdom on 14th July 2002 with an employment entry clearance visa valid until 30th November 2002. He took employment using a false identity. On 1st November 2005, whilst unlawfully in the United Kingdom, he was convicted of using a false instrument at Chichester Magistrates' Court and sentenced to 28 days' imprisonment. The court also recommended him for deportation. Soon after his arrival in prison, he was served with a Release Dates Notification Slip. This document, which the court was informed is handed to every prisoner on the day or the day after his arrival in at HMP Lewes, records the start of the sentence date, the expiry of the sentence date and, importantly from the point of view of these proceedings, the unconditional release date. In Mr Vovk's case this was set at 8th November 2005.
3. On 8th November 2005 Mr Vovk was not released and he continued to be held in prison until his eventual departure from this country in March 2006. On 22nd December 2005, six weeks later, the defendant sent the Governor at HMP Lewes a letter enclosing documents and asking the Governor to inform Mr Vovk of his decision to make a deportation, to authorise Mr Vovk's detention pending deportation and stating reasons for the detention, enclosing appeal papers, a blank disclaimer form and a blank confirmation of conveyance form.
4. On 16th January 2006, the documents reveal that the contents of the letter of 22nd December 2005 were conveyed to Mr Vovk and on that day Mr Vovk signed a disclaimer of his appeal rights against the notice of intention to deport and stated his intention to return to the Ukraine. On 15th February 2006 his detention was reviewed once again and the decision was made that he remain in detention. On 22nd February he issued proceedings for judicial review but since then he has in fact, as he has always wanted to, been deported to the Ukraine. That took place on 1st March 2006.
5. He submits that his detention at HMP Lewes between 8th November 2005 and 22nd December 2005 was unlawful. He alleges that the unlawfulness follows from the failure of the defendant to take a decision as to whether the claimant should be detained at or before the day on which that detention began. He submits that that unlawfulness is based upon the history disclosed by the documents, the defendant's admitted failure to follow his own policy, concessions made in cases indistinguishable on their facts from this case by the defendant in other cases, the domestic case law and Article 5 of the European Convention on Human Rights, in particular Article 5(1)(f).
6. Mr Datta is a national of Bangladesh. It is unclear and matters little for the purposes of this case when exactly he arrived in this country. It was either apparently August 2002 or January 2003. Whenever it was, he arrived illegally. On 19th June 2003 he was arrested during a visit to a restaurant where he was working illegally and served with illegal entrant papers. He then claimed asylum. His claim was refused on 25th June 2003 and his appeal against that refusal was dismissed on 10th November 2003. Thereafter he remained illegally in the United Kingdom.
7. On 30th October 2005, Mr Datta was arrested whilst attempting to leave the United Kingdom for Canada. He was using a false passport. He was charged and subsequently pleaded guilty to using a false instrument. On 15th December 2005, he was sentenced to a term of eight months' imprisonment and the court recommended his deportation. As in the previous case, although the original document has not survived, he would have been handed a Release Dates Notification Slip and the copy that has been generated for the purposes of these proceedings records that the start of his sentence date was 15th September 2005, that his sentence expiry date was 29th June 2006 but that his unconditional release date was 28th February 2006. That allowed for a number of days spent on remand or in police custody prior to his conviction.
8. At the hearing I enquired of counsel how it was, within the prison system, that a prisoner was informed that he was not to be released on the unconditional release date I have just referred to. I was informed that at HMP Lewes, having been served at the beginning of his sentence with the document to which I have referred, in cases like these, where there is a court recommendation for deportation in place, the prisoner is served with a copy of the same or perhaps a similar form stamped to the effect that he is now detained pursuant to that recommendation for deportation. Although neither form could be found in the cases of Mr Vovk or Mr Datta, I assumed for the purposes of the hearing, without objection, that that procedure had been followed in both their cases.
9. On 7th March, solicitors acting for Mr Datta wrote to the defendant, since they had heard that the defendant intended to make a deportation order, asking for the reasons for the continued detention of their client. Perhaps significantly, it was not until the following day that the defendant sent to Mr Datta a letter setting out his authority to detain him and giving reasons for that detention. There has since been an appeal against that intention to deport and that Mr Datta remains in this country and has since been granted bail by, as I understand it, an immigration judge as recently as 20th September 2006, so that, unlike Mr Vovk, he remains in this country. Mr Datta's claim is based on the period between 28th February 2006, when normally he would have been released from prison, and 8th March, when the Secretary of State issued his authority to detain and gave reasons for it.
10. As first presented in the claim forms and argued on both sides in the grounds for review and the summary grounds for opposing the claim, the point at issue seemed to concern the alleged failure of the defendant to give reasons for the detention or to explain the mechanisms by which the claimant could challenge the decision to detain him. However, as presented before the court, the principal, and really the only, issue was the question of whether the fact that the defendant had not, as was conceded, taken any decision prior to the detention of the two claimants meant that that detention prior to that decision was necessarily, at least in the case of those two claimants, unlawful. The failures to give reasons or to inform the claimants of their rights to legal recourse were relied on to prove that indeed there had been no decision, rather than as free standing grounds themselves. It may have been difficult to argue in either case that the claimants, both of whom were illegally in the country and had very recently been recommended for deportation by a criminal court, would not actually know why they were being detained or, since they both had the benefit of legal representation, of their right to challenge that decision.
11. I now turn to the relevant law. Paragraph 2(1) of Schedule 3 to the Immigration Act 1971, reads, so far as is relevant:

"Where a recommendation for deportation made by a court is in force in respect of any person, and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him, he shall, unless the court by which the recommendation is made otherwise directs ... be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case."

12. The way in which the Secretary of State approached his task was the subject matter of a declaration and order in the case of Sedrati, Buitrago-Lopex and Anaghatu v Secretary of State for the Home Department [2001] EWHC Admin 418 by, as he then was, Moses J on 17th May 2001. Until the decision in that case, and until the case was argued in court, there had been a presumption that those recommended for deportation by a criminal court would remain in custody unless and until the Secretary of State said so so that there was no need for any decision to be made, at about the time of the end of the sentence, whether or not to detain him or to release him on bail. That presumption was conceded by the defendant to be in error. As Moses J said in the short judgment on this point:

"2. At one stage during the course of consideration of the detention of these claimants, it had become apparent that officials were taking the view that there was a presumption. I am not wholly surprised having regard to the wording on paragraph 2, although it raised questions as to whether, if there was a presumption, that was compatible with article 5. Nevertheless, the Secretary of State very fairly, as soon as his mind was drawn to this point, took legal advice, received sensible legal advice, and has not persisted in taking that view."

13. The order that followed that decision was preceded by a declaration:

"It is declared that the terms of paragraph 2 of Schedule 3 to the Immigration Act 1971 do not create a presumption in favour of detention upon completion of the sentence

And it is ordered that ...

2. There be no further relief on the Secretary of State stating his intention:

(i) to operate arrangements in consequence of which a decision whether or not to direct release is made on or before the date on which a person may be detained under paragraph 2(1) ... of Schedule 3 to the Immigration Act 1971 so far as reasonably practicable."

The order goes on to indicate that such a decision would also include the giving of reasons why detention has been authorised and other matters.

14. Following that declaration and order, a new operational enforcement manual was put out by the defendant. The relevant chapter, for the purposes of these proceedings, of that manual is Chapter 38. It is necessary to read quite an amount of it:

"38.2. The power to detain a person who is subject to deportation action is set out in paragraph 2 of Schedule 3 to the 1971 Act. This includes those whose deportation has been recommended by a Court ... Detention in these circumstances must be authorised at Inspector/senior caseworker level in ICD [which is the Integrated Casework Directorate] or above.

38.4.2. Authority to detain a person subject to deportation action

Generally speaking, the decision as to whether a person subject to deportation action should be detained under Immigration Act powers is taken at Inspector/senior caseworker level. Where an offender who has been recommended for deportation by a court is serving a period of imprisonment which is due to be completed, the decision on whether he should be detained under the Immigration Act powers (on completion of his custodial sentence) pending deportation may be made by the HEO-level caseworker in the relevant casework section."

15. Pausing there, the defendant's own manual therefore now required an official, who should normally be an Inspector or senior caseworker but might, in certain circumstances, be an HEO level caseworker, to make a decision at or before the time that the sentence is complete.

"38.5. Detention forms and Procedures

The government stated in the White Paper that the Immigration Service should give written reasons for detention in all cases at the time of detention and thereafter at monthly intervals..."

"38.5.1. Form IS91 'Detention Authority'

Once the appropriate authority has been obtained to detain a person, form IS19 is served by the IO [Immigration Officer] on the detaining agency. This allows for the subject to be detained under their custody under Immigration Act powers...

38.5.2. Form IS91R 'Reasons for Detention'

This form is in three parts and is served on the person upon his detention [I stress those words]. The IO must complete all three sections of the form. The IO is required to specify the power under which a person is detained, the reasons for detention and also the basis upon which the decision to detain was made. The detainee must also be informed of his bail rights."

Finally for these purposes, 38.6, "Detention Reviews":

"Initial detention must be authorised by a CIO or Inspector (see section 38.4). The continued detention of all cases involving persons in sole detention under Immigration Act powers must be subject to administrative review at regular intervals. This includes those who have been recommended for deportation by a court and who have either served any period of imprisonment or were not sentenced to a term of imprisonment. Detention must be reviewed after 24 hours by an Inspector and thereafter, as directed, usually weekly by an Inspector. If circumstances change in the interim, however, an Inspector must review detention again. Detention must be reviewed again by an Inspector after 28 days, after which the MODCU [Management of Detained Cases Unit] takes responsibility for reviewing detention..."

16. I was referred to the case of R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin). The facts of the case are of no importance on the point which the case throws up, albeit it was a case which concerned Chapter 38 of the manual and stressed the importance of following the procedures set out in it. At paragraph 32 of his judgment, Collins J said this:

"Since the detention at least since 24 June 2002 was contrary to the defendant's own policy as published in Chapter 38, it was unlawful. In so deciding, I am applying the decision of the Court of Appeal in Nadarajah [[2004] INLR 139]. I do not therefore have to consider the question of proportionality."

That matter was placed before me in order to stress that this very chapter and the policy contained in it has been considered and departures from it have been found to be unlawful.

17. I was then referred to the case of Faulkner v Secretary of State for the Home Department [2005] EWHC 2567 (Admin). This case in fact was far more relevant to the claim originally brought, which depended on the failure to give reasons, because in the end Bean J in that case found that, although a decision had been made, reasons for it had not been given and that the resulting detention was unlawful simply by reason of the failure to give reasons. Mr Scannell, who represented both claimants in this case, relied upon it a fortiori to suggest that if no decision whatever had been made, including of course a failure to give any reasons for any decision, then the unlawfulness was made out.
18. We then considered Article 5 of the European Convention on Human Rights. Article 5(1) reads:

"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."

5(1)(f) reads, so far as is relevant:

"the lawful ... detention of a person ... against whom action is being taken with a view to deportation ..."

Article 5(2):

"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and [irrelevant in this case, of course] of any charge against him."

And Article 5(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 the detention is not lawful."

"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

19. I was also referred to the European case of Saadi v United Kingdom. Once again, this case was originally put before me, no doubt, to deal with the submission on the lack of reasons rather than on the prime submission now made by Mr Scannell on the failure to take any decision. In any event, the case concerned a very different procedure to this, the so called Oakington procedure, where those seeking asylum were detained pending a decision rather than, as we have been concerned with, the other end of the story where somebody has been in one case refused asylum, and in both, convicted of crime and recommended for deportation so that the stage at which the detention took place was completely different. However, it is perhaps noteworthy that in that case a delay of only 76 hours was held by the European Court not to be sufficiently prompt within the terms of Article 5(2) for the supply of reasons for detention.
20. In summary therefore, the claimant submitted that, first, the detention was not in accordance with paragraph 2(1) of Schedule 3 of the 1971 Act, which requires a decision by the Secretary of State and it is not sufficient to rely either on an apparent decision of the prison governor not to release the claimant or to a future decision by the Secretary of State. Second, that the detention amount to a clear breach of the defendant's own policies. Third, that the decision in order to accord with Chapter 38(4) must be a conscious decision by at least an Inspector or similar or, if pre-release from sentence, by a HEO. Fourth, a failure to decide is the clearest form of arbitrariness against which Article 5 is to designed to protect all citizens and, fifth, it cannot be said that until the decision was actually made that the detention was, in the words of Article 5(1)(f), actually in respect of a person against whom action is being taken with a view to deportation.
21. In reply, the defendant conceded that the actual decisions were not being made by the defendant until days in one case and weeks in the other after the actual detention had begun and that therefore the defendant was in breach of the policy set out in Chapter 38. It was further conceded that this was regrettable but it was contended anyway that paragraph 2(1) does indeed authorise detention without the need for an immediate decision. It was contended too that the "decision" of the prison to hold onto the claimants at the end of their sentences was a preliminary decision sufficient not to make the later decision invalid or unlawful. It was further contended that the declaration of Moses J in Sedrati related only to the fact of detention and not necessarily to the decision to detain. Next, that the European cases, and in particular the case of Chahal v United Kingdom [1996] 23 EHRR 413, show that detention pending deportation does not have to be justified by fear of absconding or of committing offences. It only needs justification under the principle set out in a line of cases beginning with Hardial Singh [1984] 1 WLR 704 and most conveniently set out at paragraph 46 of Dyson LJ's judgment in R(I)v Secretary of State for the Home Department [2003] INLR 196. Those principles are set out as follows, and they were principles which the Secretary of State himself, through his counsel, then put forward as the correct principles:

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal."

22. I find the argument of the claimants compelling. The defendant's argument seems to me, on analysis, to be an attempt to reintroduce the presumption of detention which had been conceded by the defendant in Sedrati and declared by Moses J to be erroneous. Without the presumption it is plain that principle (i) in I was breached. At the time that Messrs Vovk and Datta stopped serving their sentences and remained in Lewes prison, there was no intention to deport because no decision had been made one way or the other to do so. The case was simply not on the defendant's radar at the time. In Mr Vovk's case, in which the decision was only made some six weeks after the detention had begun, the equivalent of a 12 week or three months sentence, I would hold too that there had not been "reasonable diligence and expedition".
23. In discussions with counsel, I raised the practical problems which might be thrown up by a sentence even shorter than the very short sentence received by one of the claimants and the practicalities of complying with the requirement for a human mind to apply itself to a decision to detain or not. It may very well be that in such a case the court would be prepared to consider the practicalities of such a period, referring back to paragraph 2 of Moses J's order in Sedrati at 2(i), where the words "so far as reasonably practicable" appear. But, in my judgment, a period of eight days is too long in the light of a sentence which had been effective by then for well over two months and a period of six weeks is far too long in respect of any sentence, even one which was as short, effectively, as seven days.
24. Accordingly, I declare that the periods of detention claimed in each case were indeed unlawful: in Mr Vovk's case from 8th November 2005 until 22nd December 2005; in Mr Datta's case, from 28th February 2006 to 8th March 2006. Because of the way the case was argued, no submission was made to me that the detentions would not in fact have been justified had the defendant made a decision based upon the decision he later made and it is right to say that in Mr Datta's case, following the making of the decision by the defendant, two bail applications were made and refused until his recent release on bail on conditions in September of this year. Of course, in Mr Vovk's case he was anxious to return to his own country and did so, thus avoiding the need for bail to be considered.
25. MR SCANNELL: My Lord, I am grateful. Could I just, for clarity, mention one matter? My Lord, in your judgment at one point you referred to a decision by a director. I think my Lord meant to use the word Inspector.
26. MR JUSTICE CALVERT SMITH: I did indeed. I read Inspector from the chapter and then I misremembered it. Thank you, yes.
27. MR SCANNELL: My Lord, the only additional matter is -- two matters: first of all costs. I would ask for an order for costs in both cases.
28. MR JUSTICE CALVERT SMITH: Are your clients legally aided?
29. MR SCANNELL: My clients are legally aided.
30. MR JUSTICE CALVERT SMITH: So it is just legal aid assessment effectively.
31. MR SCANNELL: My Lord, indeed.
32. MR JUSTICE CALVERT SMITH: Well, you can have that.
33. MR SCANNELL: I would wish for the public fund to be protected and have it protected by having costs awarded in, obviously the claimant's favour on the basis that they have succeeded. It is my duty to protect the fund in that respect.
34. MR JUSTICE CALVERT SMITH: All right, yes.
35. MR SCANNELL: My Lord, the other matter is that there will in due course have to be an assessment of damages and in the first instance I would suggest that the matter simply be adjourned for a period.
36. MR JUSTICE CALVERT SMITH: I would very much hope in a case like this that agreement would be reached between the parties.
37. MR SCANNELL: I would hope so and anticipate that would be the case.
38. MR JUSTICE CALVERT SMITH: How long would be needed?
39. MR SCANNELL: Normally I would say perhaps 28 days but maybe --
40. MR JUSTICE CALVERT SMITH: Shall we say 56 days, to come back to the court if no agreement?
41. MR SCANNELL: I am grateful. Thank you, my Lord.
42. MS RICHARDS: My Lord, firstly on the question of costs, I do resist the application certainly --
43. MR JUSTICE CALVERT SMITH: I do not think I need to hear from you in this case. I do not think it is an appropriate order to make.
44. MS RICHARDS: My Lord, the second matter is I do ask for permission to appeal, not because any decision has been taken that an appeal would be pursued but your Lordship's judgment does raise quite important points and issues of practicality as well. Whilst obviously your Lordship has found the claimant's argument compelling, the second of the two criteria of the grant of permission to appeal concerns wider public interest.
45. MR JUSTICE CALVERT SMITH: Ms Richards, I did not refer to the facts specifically in my judgment but I have no doubt on any appeal they would be put before the court but it is the case that, in the case of -- I cannot think of the name, it is very difficult, another Ukrainian name --
46. MR SCANNELL: Indeed, my Lord.
47. MR JUSTICE CALVERT SMITH: -- facts which, to my untutored eye, are to all intents and purposes identical to these, the Secretary of State conceded and consented to the fact that the detention had been unlawful.
48. MS RICHARDS: My Lord, I have certainly seen from the claimant's skeleton argument --
49. MR JUSTICE CALVERT SMITH: So it does not seem to me, really, on the point of principle, that there is any argument at all at the moment. Clearly if one reduces the time spent down to an absolute minimum, as discussed with Mr Patel and Mr Scannell during the hearing, questions of practicality may arise. But on the facts of this case I really do not see that I ought to grant leave. No doubt you may wish to consider whether you want to appeal and then apply elsewhere.
50. MS RICHARDS: My Lord, so be it. I am asked to raise two matters in relation to factual points in the judgment. Obviously I was not at the hearing on Monday.
51. MR JUSTICE CALVERT SMITH: Please, if I have dates wrong --
52. MS RICHARDS: It is not such that, it is just my instructing solicitor is quite rightly very keen that anything that is said to the court and recorded in the judgment should be accurate. I think your Lordship made reference to prison service procedure being giving the detainee the document with the stamp that notes the intention for deportation. My Lord, the information that Mr Patel had and my instructing solicitor had was certainly that was the procedure at HMP Lewes where these prisoners were detained. It may well be that that is the wider procedure.
53. MR JUSTICE CALVERT SMITH: I see, you would not want we to say that it is the whole of the prison service. I am not sure I understood that from Mr Patel. I thought I was being told that this is what happens throughout the prison service.
54. MS RICHARDS: My Lord, it may well be that this is what happens throughout the prison service but the actual information that the defendant had --
55. MR JUSTICE CALVERT SMITH: I will make a note to insert Lewes rather than the prison service.
56. MS RICHARDS: My Lord, I am grateful and, my Lord, in terms of the reference your Lordship made to the procedure being for prisoners to be given the document with their release dates on the day of arrival in prison on the next day, that is certainly the Secretary of State's understanding but it is right to say that we do not have specific instructions to that effect. We do not have specific core information. That was Mr Patel's assumption.
57. MR JUSTICE CALVERT SMITH: Well, it is perfectly clear that in the Vovk case, because we actually have the date of the document, that it was served the following day, so we can see the date of it. But in the other case one had to be regenerated in order to -- no doubt by a computer, as it were, so it is dated 10th March -- no, long afterwards, but we proceeded on the assumption that either on that day or the day after there had been such a document.
58. MS RICHARDS: That is perfectly sensible for those purposes and it makes no difference whatsoever to the outcome but, again, it is question of we would not want the court to be recording anything other than on the very limited basis of the Secretary of State's understanding on that point.
59. MR JUSTICE CALVERT SMITH: Well, I think what I had better to do is to make a note that I will let you have the transcript in draft. Clearly you will want to consider it with a view to whether you want to apply for leave to appeal and if I have failed to limit Mr Patel's instructions -- which I know were taken on the hoof, but I am extremely grateful to him and for your instructing solicitor for doing it -- then please correct it.
60. MS RICHARDS: I am grateful, my Lord.
61. MR SCANNELL: My Lord, I simply ask that we obviously have sight of the transcript in draft as well.
62. MR JUSTICE CALVERT SMITH: Yes, both parties. Thank you very much indeed.