QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Ahmed
|- and -
|The Secretary of State for the Home Department
Lisa Busch (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 21 May 2008
Crown Copyright ©
The Hon. Mr Justice Burnett :
The Secretary of State's Policy
"26. Chapter 38 – Detention/Temporary Release
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 (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 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
Use of Detention
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.
38.3 Factors influencing a decision to detain
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.
. 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 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 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?"
27. At the material time, an Immigration Officer who ordered the detention of an immigrant was required under Chapter 38.5 to fill in a form IS 91 R by ticking all the boxes applicable, in order to inform the immigrant of the reasons for his detention. The material part of the form was 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.
This decision has been reached on the basis of the following factors (tick all boxes that apply);
1. You do not have enough close ties (eg. Family or friends) to make it likely that you will stay in once place.
2. You have previously failed to comply with conditions of your stay, temporary admission or release.
3. You have previously absconded or escaped.
4. You have used or attempted to use deception in a way that leads us to consider you may continue to deceive.
5. You have failed to give satisfactory or reliable answers to an Immigration Officer's enquiries.
6. You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK.
7. You have previously failed or refused to leave the UK when required to do so.
8. You are a young person without the care of a parent or guardian.
9. Your health gives serious cause for concern on grounds of your well-being and/or public health or safety.
10. You are excluded from the UK at the personal direction of the Secretary of State.
11. You are detained for reasons of national security, the reasons are/will be set out in another letter.
12. Your unacceptable character, conduct or associations.
13. I consider this reasonably necessary in order to take your fingerprints because you have failed to provide them voluntarily."
"a) You are likely to abscond if you are given temporary admission or release
c) Your removal from the United Kingdom is imminent
This decision has been reached on the basis of the following factors
1. you do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place.
7. you have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK."
On 21 October 2005, when the second detention was authorised, only c) and 7) of the above were ticked.
"where proceedings have been initiated which challenge the right to remove an immigrant it is not the policy of the Secretary of State to detain an immigrant on the ground that his removal in imminent. Normally, in such circumstances he will be granted temporary remission pending the result of those proceedings"
"the policy, however, was not invariably to grant temporary admission pending the result of the judicial review proceedings but to do so 'normally'. In this case (unlike Nadarajah) the defendant has had regard to that policy. She is entitled to apply it flexibly in accordance with the circumstances of the particular case under consideration." 
The First Period
The Second Period