Strand, London, WC2A 2LL
B e f o r e :
C (by her litigation friend S)
D (by his litigation friend S)
|- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(instructed by Scott-Moncrieff, Harbour & Sinclair Solicitors) for the Claimants
Ms Jenni Richards
(instructed by the Treasury Solicitors) for the Defendant
Hearing dates: 18th and 19th April 2007
Crown Copyright ©
Mr Justice Wyn Williams:
The Principal Issues in these Proceedings
i) As of August 2005, was the Defendant's policy in relation to the detention of families with children lawful or unlawful?
ii) Was the Claimants' detention between 2nd August 2005 and 1st December 2005 unlawful either in respect of the whole or part of that period?
iii) Does D have a claim against the Defendant in respect of a breach of his rights under Article 8 European Convention on Human Rights?
"The detention of families and children is particularly regrettable, but is also sometimes necessary to effect the removal of those who have no authority to remain in the UK, and who refuse to leave voluntarily. Such 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."
"Families can in some instances give rise to the same problem of non-compliance and thus the need to detain as can be encountered with single adults. Naturally there are particular concerns about detaining families and it is not a step to be taken lightly. Although true of all decisions to detain, it is especially important in the case of families that detention should be used only when necessary and should not be for an excessive period. It was previously the case that families would, other than as part of the fast-track process at Oackington Reception Centre, normally be detained only in order to effect removal. Such detention would be planned to take place as close to removal as possible so as to ensure that families were not normally detained for more than a few days. Whilst this covered most circumstances where detention of a family might be necessary, it did not allow for those occasions when it is justifiable to detain families at other times or for longer than just a few days. Accordingly, families may, where necessary, now be detained at other times and for longer periods than just immediately prior to removal. This could be whilst their identities and basis of claim are established, or because there is a reasonable belief that they would abscond. Where families are detained they are held in dedicated family accommodation based on family rooms in Removal Centres. No family is detained simply because suitable accommodation is available."
"I welcome the opportunity to put on record the Government's policy and practice on the issues [concerning the detention of asylum seeking families and children]……..
My Hon. Friend is right to say that, prior to October 2001, families with children were detained under those powers [the Immigration Act 1971] but, as a matter of policy rather than law using qualified detention criteria that meant that families would be detained only to go through the Oakington fast-track asylum process or for one or two days immediately prior to removal. He is also right to say that in October 2001, it was decided to remove this qualification and to allow for the detention of families under the same detention criteria as others. That was done in recognition of the fact that families – or the adults in families, anyway – can give rise to the same concerns as single adults, in terms of absconding or frustrating removal.
I entirely reject my Hon. Friend's assertion that families are targeted for detention or that they are detained except in the most exceptional circumstances or for the shortest periods of time……..
I am deeply sympathetic to the concerns about the detention of children. It is not something we do easily or gladly and it is certainly not our intention – or our practice – that children should be in detention for prolonged periods………."
"However, as we have made plain on many occasions, it is a regrettable fact that some families with children can give rise to the same immigration and asylum concerns as single adults, particularly in terms of failing to leave the UK voluntarily when they have no lawful basis of stay here. The detention of some families may therefore sometimes be necessary as part of maintaining an effective immigration control and asylum system. We cannot exclude families with children from those controls.
Having said that, I must stress that overall very few families are detained and that most of those who are detained are held very briefly just prior to their removal from the UK. There is a presumption in all cases in favour of granting temporary admission or release, and each case will always be considered on its merits."
"In all cases detention must be used sparingly, and for the shortest period necessary."
Paragraph 38.3 is concerned with:-
"Factors influencing a decision to detain (excluding pre-decision fast-track)
The following general principles are then listed:-
"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 the 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 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.
- what is the likelihood of the person being removed and, if so, after what time scale?
- is there any evidence of previous absconding?
- is there any evidence of a previous failure to comply with conditions on temporary release or 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 complying with the requirement 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 outcomes 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?"
Paragraph 38.9.4 deals exclusively with families. It provides: -
"The decision to detain an entire family should always be taken with due regard to Article 8 of the ECHR. Families, including those with children, can be detained on the same footing as all other persons liable to detention. This means that families may be detained in line with general detention criteria (see 38.3)……..
Detention of an entire family must be justified in all circumstances and, as in any case, there will continue to be a presumption in favour of granting temporary release. Detention must be authorised by an inspector at whatever age stage of the process it is considered necessary and although it should last only for as long is necessary, it is not subject to a particular time limit."
"Cases involving children are reviewed on a regular basis to ensure that the decision to detain is based on the current circumstances of the case and detention remains appropriate. Managers in MODCU formally review cases where children are detained after 7 days in detention (by HEO) 10 days (SEO) and 14 and each subsequent 7 days (AD). A system of Ministerial authorisation for the detention of children beyond 28 days was announced in December 2003."
"When we began the fast track process we said that it was our intention to detain asylum claimants suitable for a quick decision for a period of about seven to 10 days. If we could not decide the claim within that time scale, the claimant would be released or moved to another place of detention with the facilities to support people for longer periods. In the vast majority of cases, we have been able to do exactly that. However, the need to ensure a really sharp focus on quality decision making, including for example in non-suspensive appeal (NSA) cases the need for a second pair of eyes, means we cannot always make decisions on claimants within the original seven to 10 target time scale. While we are able to do this in over 95 per cent of non-NSA Oakington claims, our experience has shown us that NSA claims take slightly longer, with the majority of decisions being made and served within 14 days. The purpose of this announcement is to set out our revised fast track process detention policy.
The fast track process has scheduled days set aside for specific activities (interviewing, serving the decision etc.) but we intend this to be a guide as to how the process will generally operate………………We would not generally release people from detention…simply because the timetable cannot be adhered to, if the indications are that we can make and serve a decision within a reasonable time-scale. However, the period of detention for making a quick decision will not be allowed to continue for longer than is reasonable in all the circumstances. We will aim to make decisions within 10 to 14 days…… However, we will continue to detain for the purpose of deciding the claim quickly, even beyond the 10 to 14 day time scale, unless the length of time before a decision can be made looks like it will be longer than is reasonable in the circumstances….."
Is the Defendant's policy in relation to detention lawful?
"The position under domestic law shorn of Human Rights Act considerations……is clear. Paragraph 16 of Schedule 2 [Immigration Act 197] gives power to detain "pending" examination and a decision; that in my view means for the period up to the time when the examination is concluded and a decision taken. There is no qualification that the Secretary of State must show that it is necessary to detain for the purposes of examination in that the examination could not otherwise be carried out since applicants would run away. Nor is it limited to those who cannot for whatever reasons appropriately be granted temporary admission. The period of detention in order to arrive at a decision must however be reasonable in all the circumstances."
Lord Slynn then concluded that the policy then in force under the fast track procedure was not unlawful in domestic law.
"It is regrettable that anyone should be deprived of his liberty other than pursuant to the Order of the 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 of not only the applicants but of those increasingly in the queue. Accepting as I do that 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 had done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here."
"It is plain that in the present case the applicant's detention at Oakington was a bona fide application of the policy on "fast-track" immigration decisions. As to the question of arbitrariness, the Court notes that the applicant was released once his asylum claim had been refused, leave to enter the United Kingdom had been refused and he had submitted a notice of appeal. The detention lasted for a total of 7 days, which the Court finds not to be excessive in the circumstances. The Court is not required to set a maximum period on permitted detention, although it notes that the present form of detention is ordered on administrative authority only."
"The effect of paragraph 22 to 26 of his speech [Lord Slynn of Hadley] can be summarised in this way: (1) the power to detain pending examination and decision is not subject to any qualification to the effect that the Secretary of State must show that the detention is necessary because the applicant will run away if not detained; (ii) nor is it limited to those who cannot appropriately be granted temporary admission, for whatever reason; (iii) the period of such detention must be reasonable in all the circumstances; (iv) the immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective promoting speedy decision – making." see paragraph 25
Later he said:
"………the Home Office is entitled to summary judgment in all the claims relating to the detention of members of the family up to the end of their stay at Oakington, where they were being detained for examination. Although it is true that in Saadi's case  1 WLR 3131 the House of Lords did not expressly determine any claim that the detention of family with children under the Oakington process infringe the children's rights under the UN Convention on the Rights of the Child, I consider that, following the decision in Saadi's case, the claims that the detention of the family for a short period within that process was unlawful have no real prospect of success." see paragraph 122
"1. 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.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, and in the number and suitability of their staff, as well as competence supervision."
Article 37(b) of the UNCRC provides: -
"No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."
"The United Kingdom reserves the right to apply such legislation in so far as it relates to the entry into, stay in and departure from the United Kingdom on those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time."
The Lawfulness of the detention in the instant case.
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 circumstances;
iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State were not be able to affect 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 to removal.
In paragraph 47 of the judgment Dyson LJ explained: -
"Principles 2 and 3 are conceptually distinct. Principle 2 is that the Secretary of State must not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle 3 applies. Thus, once it becomes apparent that the Secretary of State will not able to affect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired."
"62. Whilst it is a necessary condition to the lawfulness for Mr Youssef's detention that the Home Secretary should have been reasonably of view of a real prospect of being able to remove him to Egypt……… I do not agree that the standards by which the reasonableness of that was to be judged is the Wednesbury standard. I say this because I can find nothing in the judgment of Woolf J in Hardial Singh the points to this being standard and because where the liberty of the subject is concerned the Court ought the primary decision maker as to the reasonableness of the Executive's actions unless there are compelling reasons to the contrary, which I do not think there are. Accordingly, I hold that the reasonableness of the Home Secretary's view that there was a real prospect of being able to remove Mr Youssef to Egypt in compliance with Article 3 ECHR is to be judged by the Court as the primary decision maker, just as it will be the Court as primary decision maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to affect a lawful return are taken in a reasonable time.
63. It follows that I respectfully disagree with the approach taken by Sullivan J and apparently also by Andrew Collins J; and I do so in the realisation that if the challenge is not unlawfulness of the detention but that the decision to remove or deport it will be by judicial review and the reasonableness of the Home Secretary's view will indeed be assessed on Wednesbury's principles. In most false imprisonment and habeas corpus proceedings the difference between the two approaches is likely to be more apparent than real because when applying the approach I hold to be the correct one, the Court ought in my opinion to have regard to all the circumstances and in doing so should make allowance of the way that government functions and the slow to second guess the Executive assessment of diplomatic negotiations. However there may be cases, all be it a few in number, where the liberty of the subject will depend on which approach is applied."
The Claim under Article 8 ECHR
"These conditions are predictable: children of this age should take some solid foods, and those under a year should receive daily vitamins and iron supplements. Children over a year of age who continue to breast feed are particular vulnerable and are likely to develop rickets unless they receive a good, mixed diet and vitamin D supplement. Rickets are more common in dark skinned people in the United Kingdom, and more common during winter when available sun light is limited. Rickets can develop in a few months over winter in rapidly growing infants. It should have been evident to any trained health visitor or doctor in the detention centre that D required appropriate preventative measures in order to prevent rickets developing."
"Mother concerned not eating properly. Still breast feeding"
Conclusion and Remedies