QUEEN'S BENCH DIVISION
B e f o r e :
| Hassan Abdi
|- and -
|Secretary of State for the Home Department
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Official Shorthand Writers to the Court)
Miss Shivani Jegarajah (instructed by Dare Emmanuel) for Cyrus Ashori
Mr Ian Macdonald QC and Miss Nabila Mallick (instructed by Duncan Lewis & Co. Solicitors) for Malik Madani
Mr Ian Macdonald QC and Mr Andi Pretzell (instructed by Lawrence Lupin) for Kadian Mighty
Mr Raza Husain and Mr Alex Goodman (instructed by Fisher Meredith LLP) for Walumba Lumba
Mr Robin Tam QC, Mr Charles Bourne and Mr Jeremy Johnson (instructed by Treasury Solicitors) for the SSHD
Hearing dates: 11th 14th November 2008
Crown Copyright ©
Mr Justice Davis :
The Legislative and Policy Background
"3.(5) A person who is not a British citizen is liable to deportation from the United Kingdom if
(a) the Secretary of State deems his deportation to be conducive to the public good;
(b) another person to whose family he belongs is or has been ordered to be deported.
(6) Without prejudice to the operation of subsection (5) above, a person who is not [a British citizen] shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
5.(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force."
(Further extended powers of detention are conferred by subsequent legislation, which are not relevant for present purposes). Particularly important for this case, however, is paragraph 2 of Schedule 3 of the 1971 Act:-
"2. (1) Where a recommendation for deportation made by a court is in force in respect of any person, [and that person is not detained in pursuance of the sentence or order of any court], he shall, unless the court by which the recommendation is made otherwise directs, [or a direction is given under sub-paragraph (1A) below,] be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary or State directs him to be released pending further consideration of his case [or he is released on bail].
(a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and
(b) he appeals against his conviction or against that recommendation,
the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.]
(2) Where notice has been given to a person in accordance with regulations under [section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)] of a decision to make a deportation order against him, [and he is not detained in pursuance of the sentence or order of a court], he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise)."
"Article 5: Right to Liberty and Security
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.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
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."
"The Government has decided that, while there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances: where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release; initially to clarify a person's identity and the basis of their claims; or where removal is imminent "
In paragraph 12.10 it is stated:-
"In addition to any consideration of bail through the judicial process, the Immigration Service will continue its periodic administrative review of detention in each case. Individuals should only be detained where necessary."
In paragraph 12.11 it is stated:-
"Detention should always be for the shortest possible time, but the Government is satisfied that there should be no legal maximum period of detention "
"4.76 Although the main focus of detention will be on removals there will continue to be a need to detain some people at other stages of the process. Our 1998 White Paper set out the criteria by which Immigration Act powers of detention were exercised and confirmed that the starting point in all cases was a presumption in favour of granting temporary admission or release. The criteria were modified in March 2000 to include detention at Oakington Reception Centre if it appeared that a claimant's asylum application could be decided quickly. The modified criteria and the general presumption remain in place "
"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. Each case must be considered on its individual merits."
In paragraph 38.3 various relevant factors, for and against detention, are set out. In paragraph 38.6.3 a detailed exposition of the applicable requirements for reasons for detention is given. Such reasons include, amongst others, a risk of absconding; removal from the UK being "imminent"; and release not being considered "conducive to the public good". The Operations Enforcement Manual is, in fact, of general application with regard to immigration detention but one section does potentially relate specifically to FNPs. That is paragraph 38.5.2:-
"38.5.2 Authority to detain persons subject to deportation action
The decision as to whether a person subject to deportation action should be detained under Immigration Act powers is taken at senior caseworker level in CCD. Where an offender, who has been recommended for deportation by a Court or who has been sentenced to in excess of 12 months imprisonment, is serving a period of imprisonment which is due to be completed, the decision on whether he should be detained under Immigration Act powers (on completion of his custodial sentence) pending deportation must be made at senior caseworker level in CCD in advance of the case being transferred to CCD. It should be noted that there is no concept of dual detention in deportation cases (see 38.11.3)."
This is then supplemented by paragraph 38.11.3.
"55.20 Temporary admission, release on restrictions and temporary release (bail)
Whilst a person who is served with a notice of illegal entry, notice of administrative removal, or is the subject of deportation action is liable to detention, such a person may, as an alternative to detention, be granted temporary admission or release on restrictions. The policy is that detention is used sparingly, and there is a presumption in favour of granting temporary admission or release on restrictions. Another alternative to detention is the granting of bail, which is covered separately in Chapter 57. The fundamental difference between temporary admission/release on restrictions and bail is that the former can be granted without the person concerned having to be detained, while the latter can only be granted once an individual has been detained and has applied for bail."
"55.1.2 Criminal Casework Directorate Cases
Cases concerning foreign national prisoners dealt with by the Criminal Casework Directorate (CCD) - are subject to a different policy than the general policy set out above in 55.1.1. Due to the clear imperative to protect the public from harm and the particular risk of absconding in these cases, the presumption in favour of temporary admission or temporary release does not apply where the deportation criteria are met. Instead the person will normally be detained, provided detention is, and continues to be, lawful The deportation criteria are:-
For non-EEA cases a sentence of at least 12 months as either a single sentence or an aggregate of 2 or 3 sentences over the past five years; or a custodial sentence of any length for a serious drugs offence (see list below);
For EEA cases a sentence of at least 24 months;
A recommendation from the sentencing court "
This is expanded upon in the following pages. Thus it is said, for example, that:-
"Due to the clear imperative to protect the public from harm, the presumption of temporary admission or release does not apply in cases where the deportation criteria are met. In CCD cases concerning foreign national prisoners, because of the higher likelihood of risk of absconding and harm to the public on release, there is a presumption in favour of detention as long as there still is a realistic prospect of removal within a reasonable time scale "
Caseworkers are then instructed to have regard to specified matters which "might make further detention unlawful"; and it is then said that "substantial weight" should be given to the risk of further offending or harm to the public indicated by the subjects' criminality. Where the offence which triggered deportation is included on the list at paragraph 55.3.1 [essentially serious crimes, including violence, sexual offences and drugs offences] it is said that the weight to be given to the risk of further offending or harm to the public is "particularly substantial".
In paragraph 55.3 it is then stated that:-
"Public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation the presumption in favour of temporary admission or temporary release will not apply the public protection imperative means that there is a presumption in favour of detention. However this presumption will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal. "
In the case of serious criminal offences it is indicated that "in practice" release is likely to be appropriate "only in exceptional cases"; a point then developed in paragraph 55.3 at considerable length.
The So-called Secret Policy
The evidence of Mr Wood
"Senior officials (mainly based in London) from UKBA (the Immigration and Nationality Directorate ("IND") as it then was) had frequent discussions with the then Home Secretary, the Right Honourable John Reid. On such occasions the intention to maintain detention until deportation was made very clear by John Reid. No records of these discussions are now available."
"It was recognised from the outset that it would be necessary to publish the new policy."
He ends the paragraph by saying:-
"In the event however for a number of reasons (which are explained more fully below) the policy was not published until 9 September 2008."
"There was never a decision not to disclose the policy. Throughout the period from April 2006 until September 2008 it was intended that the policy should be formulated in a written document and published."
He claims initial drafts did not reflect the ministerial intention and that for various reasons the matter was not given "the deserved priority". My reading of the papers, bluntly, is that the formulation and publication of the new policy eventually was simply "parked".
43.1 An e-mail of 25 April 2006 stated that detention must be in accordance with policy and case law restraints and the lawfulness must be "assessed on a case by case basis".
43.2 On 25 May 2006 it was stated, with regard to detention of FNPs convicted of crimes which were not serious crimes:-
"LAB advised us earlier today that the practice of detaining people in this way was unlawful and that we are particularly vulnerable to challenge."
43.3 "Urgency" is recommended on 5 June 2006 because "at the moment CCD are pretty much just detaining all FNPs without proper consideration/review process ".
43.4 On 8 June 2006 the FNP Task Force FNP Secretariat states that "it is difficult to use the standard lines" because they set out a requirement to decide whether detention is necessary on a case by case basis, and this is "not quite correct as in (sic) it is not happening". The e-mail also says:-
" it seems to me that detention is assumed for task force cases. That may or may not be correct but that seems to be what is happening. If it is then, as well as the issue of the standard lines not being appropriate, then we may be in danger of practising an unwritten policy."
Another e-mail of that date (from the Detention Services Policy Unit) confronts the legal issue:-
"It might be that the CCD should move to a position where the issue of detention in para 2(1) cases is handled in line with the envisaged post-Sedrati process That would provide for as close as it is possible to get to a presumption in favour of detention without actually being a presumption. Such a move would have to be expressed publicly in order to be lawful ".
A response to that on 13 June 2006 indicates a view that there should be a presumption in favour of detention, but referring to legal advice that might be contrary to Sedrati principles.
43.5 After more e-mail debate, a draft policy submission document was prepared on 14 June 2006. It refers to the current published policy set out in the 1998 and 2002 White Papers and the presumption in favour of release. It says:-
"In recent weeks to maximise public protection we have been detaining all task force and flow criminal cases where it is decided to pursue deportation. We have also been opposing all grants of bail. We do not think that this position is tenable much longer "
It is then proposed that there should exist a presumption in favour of detention for FNPs in respect of whom the courts have recommended deportation.
43.6 On 20 June 2006 it was noted that:-
"So far as announcing the policy change is concerned, this would need to be done in order to ensure that the revised policy was lawful (it would be unlawful to operate an unwritten detention policy or one that differed from a publicly stated position) "
43.7 On 20 July 2006, there is a consideration of detention spaces at centres and projected demand. "This is based on the current policy that we detain everybody ". That position is reflected by other e-mails at this time. There is frequent reference to legal "vulnerability". One e-mail (of 5 July 2006) refers to "the current position on detention which we all agree is untenable".
43.8 A further draft policy submission was prepared on 18 September 2006. The proposal is ministerial agreement to "amend our published policy so that it clearly states we will detain someone pending removal on the grounds of public protection". The body of the submission states that:-
"In recent months we have been detaining all [underlined in the original] criminal cases where it is decided to pursue deportation. We do not think that this position is still tenable For those that are removable, detention may well be held to be unlawful and at odds with our published policy or if we have failed to consider the particular circumstances."
Reference is made to vulnerability to legal challenge and the advice is that to reduce legal and reputational risks "we need to amend both our current practice and published policy".
43.9 Nothing much seems to have happened in consequence of that. On 21 December there is an e-mail stating:-
"The Home Secretary has been very clear in his statements that there will be a presumption of detention in all FNP cases until removal. We need to ensure that all staff are applying that."
It is unexplained how the Home Secretary, at least in his public statements, had been "very clear" on that. On 22 January 2007, however, an e-mail records: "we are under strict orders to detain all [task force] cases without exception". There was further debate. There was also debated what the Home Secretary had meant by continued detention until deportation had been fully "considered": which, it was appreciated, did not necessarily mean until they had actually been deported.
43.10 An e-mail of 10 February 2007 recorded that:-
" given the lack of categorical policy instructions over this issue, many people are understandably concerned."
43.11 On 26 February 2007 an e-mail from the CCD bluntly states among other things:-
"Previous advice has always been to detain in all circumstances even though this was against published detention policy."
By a separate e-mail of that date, it was again noted that ministerial statements only refer to detention up to consideration of deportation: "however whilst not in a ministerial statement it has been confirmed that ministers want detention to continue until deportation".
43.12 In May 2007 a further draft policy submission document was prepared (this being nearly a year after the first effort of 14 June 2006) and widely circulated. This draft again refers to "our current published policy" of a presumption in favour of temporary admission or release. It states that:-
"Since the foreign national prisoner issue first broke in April 2006 we have been detaining all [underlined] criminal cases where it is decided to pursue deportation."
It refers to cases where there is no realistic prospect of removal in a reasonable period of time and the prospect of legal challenge in such cases. The draft submission goes on to state in paragraph 7 that:-
"legal advice is that those statements [viz. made to the House of Commons] were insufficiently unambiguous to constitute such a change of policy and that we would therefore almost certainly lose any challenge if this were our defence."
The draft then makes this comment as cynical as it is unedifying:-
"If we were to lose a test case, we could present any change in FNP detention practice as having been forced on us by the courts."
That may or may not be good politics: but it is deplorable practice, especially when it is seen that almost from day one the new unpublished policy was perceived in virtually all quarters within the department to be at least legally "vulnerable" and in some quarters positively to be untenable and legally invalid. The tone of this draft is further confirmed by the subsequent comments that the longer the delay the more likely it would be that a court judgment "would force us to pay out significant sums in compensation to FNPs whose detention was held to be unlawful" as well as exposing the department to criticism in the media and to reputational damage.
43.13 A further revised draft policy submission of May 2007, again widely circulated, included in paragraph 7 this comment in square brackets "[Have we also not been stating since in witness statements that we have not changed our policy?]". It may be noted that, given the course of events in at least the cases of Mr Abdi and Mr Lumba, if not other cases also, that pertinent query seems to have been left unresolved up to the middle of 2008.
43.14 There was further debate about not detaining FNPs where there was no prospect of removal. There was in this context some particular discussion about FNPs from Somalia and Iran.
43.15 On 24 May 2007 a yet further revised draft policy submission was circulated. By this time, it was now stated that since April "we have been detaining most time served FNPs where it is decided to pursue deportation". So the word "all" has now been replaced by the word "most". What prompted that is not explained. Annexed was a draft process communication setting out suggested procedures to be followed by caseworkers with regard to FNPs where removal was not likely to be imminent. A comment on the draft claimed that "the published policy on detention hasn't caught up with" the new priority and also asserts that "we have been acting in line with a clear statement of government policy". Another, separate, comment on the draft is to the effect that the "do-nothing" option is not an option "as we are going to get sued and have to pay out a lot of compensation which will no doubt cause a lot of public disquiet". As will have been seen, that viewpoint was not heeded: since not until 9 September 2008 (although presaged by Mr Wood's statement of 26 June 2008) was the new policy published.
43.16 At all events, the draft submission went through further revisions. A significantly reworked draft was circulated on 7 June 2007. That includes these sentences:-
"In May 2006 you [Home Secretary] promised that no FNP would be released from detention without being considered for deportation. The promise has been maintained but in addition we have interpreted this as meaning that where detention [sic] is being pursued FNPs should normally be detained until they have been deported".
43.17 A further draft was produced in July 2007. An e-mail of 17 July 2007 records among other things:-
"The Home Secretary has asked whether we recommend changing the practice on FNP detention because of a specific legal vulnerability or because the detention estate is full of FNPs. I think the reality is that it is a mixture of the two ."
Legal advice at that time from the Home Office Legal Advisers' Branch continued to take the view that "there is ongoing legal vulnerability". On 17 August 2007 a (quite widely copied) submission to the Minister recorded that CCD had been "routinely detaining the vast majority of FNPs subject to deportation beyond their custodial sentences".
43.18 On 22 May 2008 a policy statement was agreed by the Chief Executive of the Border and Immigration Agency that continued to refer to Chapter 38 of the Operations Enforcement Manual (now Chapter 55 of the then Enforcement Instructions and Guidance) and continued to refer to a presumption in favour of release: while suggesting it would be displaced in FNP cases by the individual's criminality, consequent increase in the risk of absconding and so on. Reference is made in that statement to the statements made in the House of Commons and to the Home Affairs Committee in 2006 by the then Home Secretary; and to the Cullen criteria.
43.19 As noted by Mr Wood in his witness statement of 31 October 2008, revisions were made to that policy statement on 30 May 2008. It was also noted that in a case then before the courts called "A" a witness statement had been filed which was inconsistent with the latest version of the policy statement.
43.20 Further consideration then led to Mr Wood's first statement of 26 June 2008 and, ultimately, to the revised policy eventually being published on 9 September 2008.
The underpinning legal principles
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."
"(a) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(b) The deportee may only be detained for a period that is reasonable in all the circumstances;
(c) 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;
(d) The Secretary of State should act with reasonable diligence and expedition to effect removal."
An illustration of proposition (b) is that, as is borne out by other authorities, a person ordinarily cannot complain that a period of time is unreasonable if the delay is occasioned by his own conduct. Also, as to proposition (ii), it may be noted that at paragraph 29 Simon Brown LJ said:-
"The likelihood or otherwise of the detainee absconding and/or reoffending seems to me to be an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainee would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee's removal abroad."
See also at paragraph 48 per Dyson LJ. At paragraph 53 Dyson LJ warned against the notion that the risk of absconding could become a trump card "regardless of all other considerations, not least the length of the period of detention".
"55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
"Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions often being inextricably linked."
Keene LJ expressed the same view, in particular at paragraph 71 of his judgment.
Factual background relating to the claimants
The claimant Abdi
The claimant Ashori
The claimant Madani
The claimant Mighty
The claimant Lumba
"A declaration that the Secretary of State acted unlawfully in failing to disclose to the courts from April 2006 to June 2008 the policy that was in fact being applied to the detention of foreign national prisoners and to the claimant WL over that period and to the claimant HJA over the period November 2006 to July 2008"
13. Public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release will not apply. This is because in such cases, there is a clear imperative to protect the public from the risk of harm, which arises through a risk of re-offending if the individual is released, as well as an increased risk of absconding evidenced by a past history of lack of respect for the law. The public protection imperative has the effect that the starting point is that there is a presumption in favour of detention. However, this presumption will be displaced where legally the person cannot, or can no longer, be detained because detention would exceed the period reasonably necessary for the purpose of removal. In assessing what is a reasonable period in any individual case, the caseworker must look at all relevant factors to that case, including the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences. Caseworkers are given guidance in Cullen 2 as to whether an offence is more or less serious."
In paragraph 11 of his witness statement of 31 October 2008 he said this, for example:-
"11. Some members of CCD have expressed their understanding of the policy to be implemented as a 'blanket' or 'near blanket', and documents that are exhibited contain references to these, and comparable, terms. Such language is also used in documents by more senior officials describing in general terms the new approach. This reflects the significant change in policy from a presumption in favour of release to a presumption in favour of detention. The result of this change was that the vast majority of FNPs who were to be deported were detained pending deportation. The presumption in favour of detention was, however, rebuttable and it was not a "blanket" policy in the sense of permitting no exception: quite apart from the releases that took place as a result of Operation Cullen, I have identified 16 cases where FNPs were released, even though a decision to deport had been made, and there may well be others. Moreover, some of the contemporaneous documents do demonstrate that it was recognised at the time that this was not a blanket policy."
"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."
That has since been applied subsequently, for example by Calvert Smith J in R (Vovk) v Secretary of State for the Home Department  EWHC 3386 Admin. It has also been stated as representing the law in subsequent editions of the most widely used practitioners' text book in this field, Mr Macdonald's work on Immigration Law and Practice see paragraph 17.17 in the most recent edition (7th ed.).
"49. In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able if need be with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
As put by Sedley LJ in R(Begbie) v Secretary of State for Education and Employment  1 WLR 1115 at p.1132:-
" there are today cogent objections to the operation of undisclosed policies affecting individuals' entitlements and expectations."
In R(Salih) v Secretary of State of the Home Department  EWHC 2273 Admin Stanley Burnton J said at paragraph 52, in the context of "hard cases" support of unsuccessful asylum seekers but speaking generally:-
"Leaving aside contexts such as national security, it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by Statute."
An illustration of the particular requirement for the need for sufficient accessibility (and precision) for a policy in the context of detention can be found in the case of R(Nadarajah) v Secretary of State for the Home Department  EWCA Civ.1768, especially at paragraphs 64-67.
"108. It is common ground that the fact that D and K were wrongfully denied a medical examination within 24 hours of admission contrary to Rule 34 does not of itself mean that they were wrongfully detained. It is common ground that it is for each of D and K to show that had they received (as they should) such examination within 24 hours then they would have been released at an earlier time than in fact they were. It is common ground that this issue of causation is to be assessed on the balance of probabilities: these are not 'loss of chance' cases."
The authoritative force of this is much weakened by the fact that this was a matter of concession (albeit by most experienced counsel): although I clearly acted on the basis that the agreed approach was correct. But for what it is worth I have to say, revisiting the matter, that it still seems to me that this approach was correct. I am reluctant to appeal to considerations of common sense. After all common sense can sometimes be a slippery customer (many judges, for example, have experience of two advocates arguing for diametrically opposed conclusions with each simultaneously praying in aid "common sense" in support of the conclusion each advances). But all the same any other conclusion would seem to me totally unjust. Why should a detainee who has not received the medical examination within 24 hours, as required by the Rules, receive damages for unlawful detention, even if it can be shown I say nothing about the burden of proof here that he would have been detained anyway had the medical examination occurred within 24 hours?
"I agree with him that even on his approach the failure to give the right reason for detention and the giving of no or wrong reasons did not in the end affect the legality of the detention."
(It may be noted that, in the European Court of Human Rights: Application 13229/03 a finding of violation of Article 5.2 was made but no compensation by way of just satisfaction ordered; para.89).
"The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy as made public."
The thrust of the claimants' argument in the case before me would indicate that, in Nadarajah, the applicant should without more have been declared to have been unlawfully detained and entitled to damages. But the Court of Appeal in that case went on to find that, had the policy been made accessible, the solicitors would have filed the necessary proceedings, rather than simply have stated that they were ready to institute them. Again (and while the point was not necessarily debated before the Court of Appeal and perhaps is not part of the ratio) causation and materiality do seem to have been considered or assumed to be relevant.
"If an immigrant has been deprived of his liberty by unlawful executive action he should not be denied access to the courts for the mandatory compensation to which he is entitled."
"Mr Catchpole also submitted that we should bear in mind the consideration that, when the Administrative Court quashes a decision of an immigration officer on the grounds of public law error, there will be nothing to stop him making the same decision, this time by a lawful route. It appears to me that the answer to this objection lies in the field of causation. In Nadarajah's case this court held that if the immigration officers' decisions had not been tainted by their failure to disclose the policy on which they relied, the applicants' lawyers would have ensured that legal proceedings would have been in fact initiated, and not merely threatened, if this was what was needed to prevent their clients' detention. In Saadi's case  1 WLR 3131, para 48, on the other hand, Lord Slynn observed that the failure to give the right reason for the detention, and the giving of no reasons, or the wrong reasons, on the form delivered to the claimants, although procedurally inept, did not affect the legality of their detention."
"33 The words 'in accordance with the law' appear, of course, in Article 8(2). Plainly the language of Article 5(1) 'in accordance with a procedure prescribed by law' is not the same, but the two provisions impose, I think, kindred requirements: 'to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules'. Here the 'rules' are the Hardial Singh principles. Their fulfilment in any given case saves a detention from the vice of arbitrariness. A system of regular monitoring is, no doubt, a highly desirable means of seeing that the principles are indeed fulfilled. But it is not itself one of those principles. The words in Article 5(1) 'in accordance with a procedure prescribed by law' no doubt require appropriate formalities, so that any order for detention ' should issue from and be executed by an appropriate authority' (as it was put in Winterwerp); and they certainly prohibit arbitrary action. But they do not necessarily require the imposition of any specific system of internal mechanics as the means of avoiding it."
"34. It is important to notice that if this approach is wrong, it means that a detention will be unlawful in the absence of (or failure to fulfil) a system of internal monitoring even though it can be shown on the particular facts that the detention, far from being arbitrary, is wholly justified. Such a position, however, is at odds with authority in this jurisdiction which tends to show that a failure of a published procedure which a detainee is entitled to have applied to him will not of itself invalidate his detention. "
He then proceeded to cite D & K and Saadi, and went on:-
"35. In seeking to formulate the issue before us I posed the question, what is the reach of the power conferred by paragraph 2(2) of Schedule 3 to the Immigration Act 1971, and characterised it is a question of statutory construction. In light of all the matters I have canvassed I would summarise my conclusions on this issue as follows:
(i) Compliance with the Rules and Manual as such is not a condition precedent to a lawful detention pursuant to paragraph 2(2). Statute does not make it so (contrast s.34(1) of PACE, and the case of Roberts  1 WLR 662). Nor does the common law, or the law of the ECHR.
(ii) Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) requires that in every case the Hardial Singh principles should be complied with.
(iii) It is elementary that the power's exercise, being an act of the executive, is subject to the control of the courts, principally by way of judicial review. So much is also required by ECHR Article 5(4). The focus of judicial supervision in the particular context is upon the vindication of the Hardial Singh principles ..."
Laws LJ went onto hold (para.40) that it was "plain" that the claimant (SK) was lawfully held in compliance with the Hardial Singh principles throughout; and the appeal was allowed. Keene LJ ("with some hesitation") agreed, saying at paragraph 47:-
" these breaches do not render unlawful the detention of [SK]. In particular I see the force of Laws LJ's point that compliance with the 2001 Rules is not a precondition for the exercise by the Secretary of State of his powers contained in Schedule 3 of the Immigration Act 1971".
He concluded that a failure to comply with the requirements of Rule 9 of the 2001 Rules would not of itself render the detention unlawful. Longmore LJ also agreed that the appeal should be allowed.
Burden and Standard of Proof
The individual cases
"I have spoken to Doug Martin in CTU with regard to removals back to Somaliland. The MoU is still being renegotiated however Doug advised that as the existing MoU is still in place an application can be made to the Somaliland authorities for Mr Abdi to be taken back but it is likely to be refused as the authorities have said they do not want any new applications to be made until the new MoU is in place (NB: for the purposes of a JR or bail application the courts are to be advised that applications for removal to Somaliland can be made."
"I cannot see how we can remove him to Iran if the authorities in the Iranian Embassy cannot accept him as one of their nationals without evidence. I propose release from detention with restrictions ."
"With uncertified evidence or no evidence it is not possible to obtain an ETD. In this case, where the only evidence is insufficient for the Iranians' purpose we may well have to consider release, or tagging given the high risk of absconding."
However, the note goes on to record a view as to the lack of effort by Mr Ashori to assist and:-
"Realistically this subject to going to be difficult to document. However, I am not satisfied that he has tried to obtain evidence and we have not exhausted our avenues of enquiry."
"He is going home one way or another and the chances are he will remain detained until this occurs to prevent this he needs to assist us and be prepared to return."
i) There is no document relating to Mr Ashori which shows that he was put or kept in detention because of the new policy.
ii) The individuated consideration of his case generally shows an appreciation of, and application of, the Hardial Singh principles: that was the approach adopted and, as I have held, correctly applied.
iii) When recommendations for release were rejected, this was on (justified) grounds that a return to Iran was assessed as possible within a reasonable time, at all events for someone claiming (as Mr Ashori was) to be willing to be returned, and in the context of an assessment of Mr Ashori giving rise to the delay by his failure to help obtain the required documentation.
iv) The various bail applications were refused by Immigration Judges who could not, ex hypothesi, have been swayed by consideration of the new policy and who, among other things, considered that there was a lack of cooperation.
v) There clearly was a very high risk of absconding or breach of bail conditions (a matter which, as the decision in A shows, is capable of being of the greatest importance in this situation).
"Notice of a decision is required before it can have the character of determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system ."
Lord Steyn went on to make observations to the effect that an uncommunicated administrative decision cannot bind an individual (paragraph 30). That was said in the context of a case where income support was terminated on the footing of an asylum claim having been determined, but no notice of the determination had been given to the applicant. That was similarly so here, Mr Macdonald submitted. (It occurs to me that another way of putting it, adapting the language of Laws LJ in SK, is to say that such a notice here was a precondition to lawful detention.) On that basis, the argument went, the detention was unlawful, at all events until 9 January 2005: and it is irrelevant to enquire whether there might have been other grounds whereby detention on 24 November 2004 could have been justified.
"64 I have already indicated that I am entirely satisfied in the circumstances of this case that there is a real risk of absconding. That means that to release would be likely to undermine the whole purpose of deportation, which is clearly in the public interest and for the public good, as the Secretary of State has decided; and that decision has been upheld on appeal."
He also said this at paragraph 78:-
"In all cases it is surely necessary to consider whether the individual is sufficiently high risk, notwithstanding the circumstances which led to his imprisonment."
He went on to say this at paragraph 86 and 87:-
"86. It seems to me that I have to consider for myself whether detention, applying the correct principles, based on Hardial Singh, is lawful. Mr Goodman submits that it is not for the court to remedy any defects in the process or any unlawfulness perpetrated by the Secretary of State. That is not what the court is doing. The court has to take account not only of the presumption in favour of liberty but also has to take into account the circumstances, the danger to the public if the man is released, the risk of absconding so that deportation is frustrated and the reasonableness, on the relevant principles, of continuing detention. That does not depend upon any matters raised by, or possible mistakes made by, the Secretary of State.
87. In SK Munby J suggested that it was not appropriate for the court to rely on matters not raised by the individual officer in objecting to bail. In that case the matter that was not relied on was the risk of absconding. I am bound to say that I do not agree with that. It seems to me that the court is not only entitled to, but is bound to take into account all relevant material in deciding for itself whether detention is or is not lawful, both that which is favourable to and that which is unfavourable to a particular individual."
As will be gathered, I agree with that approach of Collins J: which also seems to me to be entirely consistent not only with A but also with the subsequent approach of the Court of Appeal in SK.
i) The policy introduced from April 2006 with regard to FNPs was unlawful as being contrary to law and the provisions of paragraph 2 of Schedule 3 to the 1971 Act (as interpreted by Sedrati).
ii) Such policy was also unlawful as being insufficiently published or accessible prior to its publication in the Enforcement Instructions and Guidance issued on 9 September 2008.
iii) The policy as published on 9 September 2008 remained unlawful, as being contrary to the provisions of paragraph 2 of Schedule 3 to the 1971 Act (as interpreted by Sedrati).
iv) Each claim for damages for wrongful detention on the part of the claimants Ashori, Madani, Mighty and Lumba fails. The remaining parts of the claim of the claimant Abdi are adjourned for further decision.