QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (SK)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 18 January 2008
Crown Copyright ©
Mr Justice Munby :
"Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed "the black" in Sommersett's Case (1772) 20 StTr 1."
The legal framework
"in English law every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act."
"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."
Mr Goodman places particular emphasis upon the phrases I have highlighted.
"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 … when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise."
There are corresponding provisions in Schedule 2 relating to failed asylum seekers.
"The power to detain asylum seekers is conferred, in wide terms, on the [Secretary of State] by the provisions of the Immigration Act 1971 and, in particular, the provisions of Schedule 2 of that Act. The width of the primary statutory provisions has, however, been limited by pronouncements of policy by the Government and by secondary legislation, in the form of the Detention Centre Rules 2001."
The same applies to the powers conferred on the Secretary of State by Schedule 3 in relation to those liable to deportation.
"Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly."
i) Paragraph 38.1 provides so far as material that:"To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy" (emphasis added).
ii) Paragraph 38.3 provides so far as material that:"Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified."
iii) Paragraph 38.5 provides that:"Although the power in law to detain an illegal entrant rests with the IO, or the relevant non-warranted immigration caseworker under the authority of the Secretary of State, in practice, an officer of at least CIO rank, or a senior caseworker, must give authority. Detention must then be reviewed at regular intervals (see 38.8)."
iv) Paragraph 38.6 provides so far as material that:"The Government stated in the 1998 White Paper that written reasons for detention should be given in all cases at the time of detention and thereafter at monthly intervals" (emphasis in original).
v) Paragraph 38.6.3 provides so far as material that:"It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure that they are always justified and correctly stated. A copy of the form must be retained on the caseworking file" (emphasis in original).
vi) Paragraph 38.8 provides so far as material that:"Continued detention … must be subject to administrative review at regular intervals. At each review robust and formally documented consideration should be given to the removability of the detainee.… A formal and documented review of detention should be made after 24 hours by an Inspector and thereafter as directed at the 7, 14, 21 and 28 day points.At the 14 day stage, or if circumstances change between weekly reviews an Inspector must conduct the review (emphasis in original).… In CCD an HEO reviews detention up to 2 months. An SEO/HMI reviews detention up to 4 months, the Assistant Director/Grade 7 up to 8 months, the Deputy Director up to 11 months and the Director at 12 months and over."The CCD, I should explain, is the Criminal Casework Directorate, which has had responsibility throughout for SK's case.
The legal framework – the case-law
"In R v Governor of Durham Prison, Ex p Hardial Singh  1 WLR 704 it was held, in a decision which has never been questioned (and which was followed by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre  AC 97), that such detention was permissible only for such time as was reasonably necessary for the process of deportation to be carried out. Thus there was no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wished to remove."
Having observed that this ruling was wholly consistent with the obligations undertaken by the United Kingdom in the Convention (not of course at that time part of our domestic law), and having referred to Article 5, Lord Bingham continued:
"Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated."
"where authorities are aware, as here, that a deportation order cannot be enforced, detention under an order made at that specific time can no longer be considered to be detention of a person "against whom action is being taken with a view to deportation"."
"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 … 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."
" There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh  1 WLR 704, 706D … This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D … In my judgment, [counsel] correctly submitted that the following four principles emerge:
(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.
 Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may 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 (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired."
The factual background – the situation with regard to Zimbabwe
i) 4 August 2005: Collins J ordered by consent that removal of 30 "test case" Zimbabweans be suspended pending resolution of the issue in a test case. Involuntary returns of failed Zimbabwean asylum seekers were thus suspended.
ii) 14 October 2005: The Asylum and Immigration Tribunal promulgated its decision in AA (Involuntary Returns to Zimbabwe) Zimbabwe CG  UKAIT 00144 that failed asylum seekers returned to Zimbabwe were at risk.
iii) 12 April 2006: The Court of Appeal in AA and LK v Secretary of State for the Home Department  EWCA Civ 401,  2 All ER 160, remitted the decision of the AIT back to the AIT for reconsideration, but without indicating that forced return was safe for failed asylum seekers.
iv) 2 August 2006: The Asylum and Immigration Tribunal promulgated its decision in AA (Risk for Involuntary Returnees) Zimbabwe CG  UKAIT 00061, revising its previous decision and holding (see at paras  et seq) that failed asylum seekers returned involuntarily to Zimbabwe were not at risk.
v) 26 September 2006: In response to comments by Burton J in the Administrative Court, the Secretary of State undertook not to enforce the return of failed asylum seekers to Zimbabwe pending the outcome of the appeal to the Court of Appeal against the decision of the AIT in AA (Risk for Involuntary Returnees) Zimbabwe CG  UKAIT 00061.
vi) 6 March 2007: The Court of Appeal in AA v Secretary of State for the Home Department  EWCA Civ 149 again remitted the decision back to the AIT. Subsequently the AIT identified a different case – HS – as the appropriate vehicle to address the issues about the return to Zimbabwe of failed asylum seekers.
vii) 16 July 2007: The Border & Immigration Agency issued its most recent 'Operational Guidance Note' in relation to Zimbabwe. Having referred to the Zimbabwe case-law summarised above, it stated the Secretary of State's policy in paragraph 5.4:"The Home Office therefore continues to defer the enforced return of failed asylum seekers to Zimbabwe until the AIT has determined HS."That remains the policy today. The Operational Guidance Note continued in paragraph 5.6 by making the point that:"Zimbabwean nationals may return voluntarily to any region of Zimbabwe at any time by way of the Voluntary Assisted Return and Reintegration Programme run by the International Organization for Migration … The AIT determination in AA did not find voluntary returnees to be at risk when going back to Zimbabwe."
viii) 21 November 2007: The Asylum and Immigration Tribunal promulgated its decision in HS (Returning Asylum Seekers) Zimbabwe CG  UKAIT 00094, confirming that failed asylum seekers are not at risk on return to Zimbabwe by reason only of being failed asylum seekers. An application for permission to appeal to the Court of Appeal is pending.
The factual background – SK's case
i) 30 October 2002: SK, a national of Zimbabwe, arrived in the United Kingdom as a visitor with 6 months leave to enter.
ii) 9 May 2003: SK applied for leave to remain for two years as a student. Leave was granted for one year until 30 April 2004.
iii) February 2004: SK was accused of common assault. The police took his passport, so he was, he says, unable to apply for an extension of his leave when it expired on 30 April 2004.
iv) January 2005: SK was acquitted. The police returned his passport.
v) 18 July 2005: SK committed three offences for which he was charged and remanded on bail.
vi) 30 August 2005: SK was remanded in custody, having breached a curfew condition imposed as a term of his bail.
vii) 17 November 2005: SK was convicted of a Bail Act offence
viii) 9 December 2005: SK was convicted on two counts of common assault and one count of sexual assault on a female.
ix) 24 January 2006: SK was sentenced to a total of 12 months imprisonment and ordered to be registered as a sex offender for 5 years. No recommendation for deportation was made by the sentencing judge.
x) 7 March 2006: The Secretary of State decided to make a deportation order against SK.
xi) 8 March 2006: SK's sentence of imprisonment expired. He was detained by the Secretary of State in accordance with his powers under paragraph 2 of Schedule 3 to the Immigration Act 1971. He remained in HMP Woodhill, where he had been serving his sentence. The material part of the letter dated 8 March 2006 in which this decision was communicated to SK reads as follows:"It has been decided that you should remain in detention because:You have not provided a reliable address and are likely to abscond if given temporary admission or release.There is insufficient reliable information to decide whether to grant you temporary admission or release.The decision to detain you has been reached on the basis of the following factors:You have not submitted evidence that you have close ties (eg family or friends) to make it likely that you will stay in one place. You have not provided us with any address that you will be resided [sic] on your release.You have previously failed to comply with conditions of your stay. You failed to leave the United Kingdom on expiry of your leave to remain in the United Kingdom.You have not produced satisfactory evidence of your lawful basis to be in the United Kingdom.You have previously failed or refused to leave the United Kingdom when required to do so.Your detention will be reviewed on a regular basis."It will be noticed that neither the fact of SK's criminal convictions let alone the alleged seriousness of the offences of which he had been convicted formed any part of the reasons for his detention. Detention was justified, in substance, on two grounds: that SK was an unlawful 'overstayer' and that it was likely he would abscond if released.
xii) 24 March 2006: SK claimed asylum. His letter read as follows: "I wish to claim asylum. I am unable to return to Zimbabwe." No further particulars were given.
xiii) 11 April 2006: SK asked the Secretary of State to move him from HMP Woodhill to a Detention Centre "where I will be treated as a human and not an animal."
xiv) 18 April 2006: Acting on behalf of SK, the Milton Keynes Citizen's Advice Bureau (the CAB) wrote two letters to the Secretary of State: one requesting SK's urgent transfer to a Detention Centre now that his sentence had been completed; the other appealing against the deportation order on the grounds that, in the light of the decision of the Court of Appeal in AA and LK v Secretary of State for the Home Department  EWCA Civ 401,  2 All ER 160, deportation would contravene SK's rights under both the Geneva Convention and the European Convention.
xv) 20 April 2006: Again acting on behalf of SK, the CAB wrote to the Secretary of State requesting SK's release on temporary admission "for the following reasons":"1 Our client wishes to claim asylum and given that he is a Zimbabwean, there is NO prospect of any imminent removal presently.2 We would submit that it would be unlawful to detain our client indefinitely pending the outcome of the Court decisions in relation to the involuntary returns of asylum seekers or failed asylum seekers from the UK to Zimbabwe.3 We submit that our client's prolonged detention in this respect is unjustified and unlawful. We would request that you consider granting our client temporary admission as a matter of urgency."
xvi) 3 May 2006: Having had no response to its earlier letter the CAB wrote again to the Secretary of State seeking SK's release on temporary admission:"It is quite clear that our client cannot be forcibly returned to Zimbabwe in the foreseeable future and we would therefore submit that he should be released on temporary admission/ release as a matter of urgency. Given that our client cannot be removed within a reasonable time or in the foreseeable future, would in our view make his further detention unlawful. We wish to remind you that our client's detention can only be lawful if it is for a reasonable period of time."Although the CAB did not say so in terms, this letter, like the previous one, was quite plainly relying upon the Hardial Singh principles. It is shocking that these letters, which it will be noted asserted in terms that SK's detention was "unlawful", were simply ignored by the Secretary of State's minions. No reply to either letter was ever sent to the CAB and the Secretary of State's file contains nothing to show that officials ever gave any consideration of any sort to either of them.
xvii) 17 May 2006: SK applied for bail (by now he had been moved to HMP Lincoln).
xviii) 19 May 2006: SK's bail application was refused by Immigration Judge Wilson. The Secretary of State's stance at that hearing was that SK "could be removed swiftly" if his appeal against the deportation order failed (seemingly no thought was given by the Secretary of State to the fact that SK had an outstanding asylum application). The Secretary of State's Minute of the hearing notes that if SK were to lose his appeal "then SoS will have to demonstrate that further detention lawful if policy on enforced removals to Zimbabwe is still suspended." The Minute also records:"Mr Wilson stated that he wanted submissions from PO [at the substantive hearing] as to lawfulness of [SK's] detention in view of policy not to enforce removals to Zimbabwe."
xix) 15 September 2006: SK again applied for bail. The Secretary of State's stance was that if SK's appeal failed he could be removed "with[in] a reasonable time scale as he has a valid passport." The bail application and SK's appeal were adjourned for hearing on 21 September 2006 to enable the Secretary of State to make a decision on SK's application for asylum.
xx) 19 September 2006: The Secretary of State refused SK's application for asylum.
xxi) 21 September 2006: The hearing of SK's appeals against the deportation order and the refusal of asylum and of his human rights appeal took place before Immigration Judge Chambers and Ms V S Street (Lay Member). Bail was refused, Immigration Judge Chambers noting that SK had a previous Bail Act offence, that his prospects of obtaining sureties were poor, that his appeals appeared to be without merit and that "there is every likelihood that [SK] if granted bail, will abscond", having no family ties in the United Kingdom.
xxii) 4 October 2006: Promulgation of the decision of Immigration Judge Chambers and Ms Street dismissing all three of SK's appeals. In dismissing SK's claim to asylum they rejected his account of events in Zimbabwe, finding that he was misleading and eventually evading the authorities and that,"believing he had a poor case in resisting deportation he sought to bolster his prospects of success by inventing a false asylum claim."As they pointed out, SK had claimed asylum only when he had been served with deportation papers. In relation to SK's appeal against the deportation order, they concluded that the Secretary of State was right to conclude that SK's deportation was necessary:"These were serious offences. [SK] is assessed as presenting "a medium risk of sexual or violent offending upon his release"."
xxiii) 4 January 2007: Decision of Senior Immigration Judge Allen ordering a reconsideration of SK's appeal.
xxiv) 4 May 2007: SK was moved from HMP Lincoln to Campsfield Immigration Removal Centre.
xxv) 21 June 2007: The reconsideration of SK's appeals against the deportation order and the refusal of asylum and of his human rights appeal took place before Immigration Judge Blair-Gould.
xxvi) 6 July 2007: Promulgation of the decision of Immigration Judge Blair-Gould refusing SK's appeals following reconsideration: "The Tribunal made no material error of law in its determination and its decision upon [SK's] appeal shall stand." There has never been any challenge to this decision. So SK's appeal rights were exhausted on 16 July 2007.
xxvii) 28 July 2007: An internal fax shows that attempts to serve FRS (Facilitated Return Scheme) papers on SK, who was by now detained in Harmondsworth Immigration Removal Centre, had been unsuccessful. SK had "refused to accept them and said that he has no intention of returning to Zimbabwe as he will be tortured and killed."
xxviii) 24 August 2007: A Deportation Order was made and served on SK.
The letters before action
"The unlawfulness of the detention is aggravated by the continued failure of the Home Office to respond to the representations sent by [SK's] solicitor dated 24/10/07, 25/10/07, 02/11/07 and 9/11/07. Where an allegation of unlawful detention is made it is submitted that it is incumbent on the SSHD to act swiftly."
"unless by midday on Friday 16 November 2007 the Defendant lodges with the Court Office an Acknowledgement of Service together with Summary Grounds of Defence explaining why [SK] is, and/or should continue to be, detained, [SK] is to be released from Detention immediately thereafter" (emphasis in original).
i) First, Mr Goodman submits that there has been a failure to carry out regular reviews of the kind required by the Detention Centre Rules 2001 and the Operations Enforcement Manual. This complaint itself falls into two parts:a) In the first place it is said that SK's detention has not been reviewed with the frequency required and by persons with the necessary seniority as required by paragraph 38.8 of the Operations Enforcement Manual.b) In any event, it is said, such few reviews of SK's detention as have been carried have been inadequate.
ii) Secondly, Mr Goodman submits that bearing in mind the Hardial Singh principles there is not, and has long ceased to be, if there ever was, any jurisdiction to detain SK. This complaint also falls into a number of parts for it is said that SK's detention offends each of the four Hardial Singh principles.
i) At all times there have been rational and lawful grounds for SK's detention.
ii) At all times there has been a reasonable prospect of SK'a removal.
iii) SK's detention has not exceeded a reasonable period for effecting his removal.
iv) The Secretary of State has taken steps to effect SK's removal.
v) What Mr Chamberlain calls "procedural breaches" of the Secretary of State's policy in relation to the regularity of reviews do not render his detention unlawful unless SK can show that but for them he would have been released.
Failure to carry out reviews at the required frequency and by appropriate persons
"The subject has been in detention since 09 March 2006 and no monthly review has been done since. SK has a current asylum claim still pending."
Another e-mail dated 20 January 2007 shows that this e-mail came to the attention of an Assistant Director. There is also a 'Minute of Decision' dated 16 January 2007 which records that:
"SK is currently being detained at HMP Lincoln. He has been detained since 9 March 2006 and no monthly review has been done since."
That Minute was seen on 20 January 2007 by both an Assistant Director and the Deputy Director. So this disgraceful state of affairs was known at a high level within the CCD. It does not seem to have been unique, for on 22 January 2007 another official added to the Minute the comment "this is another pretty appalling case" (emphasis added).
i) January 2007: SK was sent a 'Monthly Progress Report to Detainees' dated 16 January 2007. Signed by a casework officer, this document asserted that "It has been decided that you will remain in detention". That was untrue, for the file shows that all that had happened by 16 January 2007 was that a Minute had been written by an official who said "I suggest that detention is maintained?" Further Minutes show that continuing detention was not authorised by the Deputy Director, as it should have been, until 20 January 2007. The reasons for detention specified in the 'Monthly Progress Report' were that:"There is reason to believe that you will fail to comply with any conditions attached to the grant of temporary admission or release.To effect your removal from the UK."The document continued:"This decision has been reached on the basis of the following factors
- You have not produced satisfactory evidence of your identity, nationality or lawful basis to remain in the UK.
- You have previously failed or refused to leave the UK when required to do so.
- You have used or attempted to use verbal/ documentary deception to gain leave to enter/remain or evade removal and it is considered likely that you will do so again.
- You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place."
ii) March 2007: This review should have been conducted by the Director. There is no evidence that it was, if indeed there was any review at all. SK was sent a 'Monthly Progress Report to Detainees' dated 5 March 2007 signed by a casework officer, this document again asserting that "It has been decided that you will remain in detention" and setting out the same reasons and relying upon the same factors as in the corresponding document dated 16 January 2007. The file contains no other documentation relating to this review.
iii) 22 May 2007: This review was conducted, as it should have been, by the Director and SK was sent a 'Monthly Progress Report to Detainees' dated 24 May 2007, again setting out the same reasons as in the previous two documents and relying upon essentially the same factors as previously. It is of interest to note that the Minute dated 15 May 2007 which was sent up to the Director, with the recommendation that detention be maintained, stated that SK had been detained since 9 March 2006 and noted that the first detention review since SK had been detained was completed on 16 January 2007 and the second on 5 March 2007. So the Director was reminded of the failings prior to January 2007 and now had drawn to his attention the fact that during the almost four months since then there had been only one review. Yet this deplorable state of affairs seems to have passed the Director by. His only comment on the Minute was "I agree detention should be maintained pending the High Court review" – this apparently being a reference to the reconsideration proceedings by SK in the AIT.
iv) June 2007: This review should have been conducted by the Director. There is no evidence that it was. SK was sent a 'Monthly Progress Report to Detainees' dated 30 June 2007 signed by a casework officer, this document again asserting that "It has been decided that you will remain in detention" and setting out the same reasons and relying upon the same factors as in the corresponding document dated 24 May 2007. The file contains no other documentation relating to this review except for a Minute dated 30 June 2007 prepared by a casework officer, containing his "proposal" that "subject should remain in detention", which does not contain any comments by and is not signed by anyone else. So again it would seem that the document sent to SK was untrue, for all that the file shows to have happened by 30 June 2007 was that the caseworker had made a "proposal" that SK should remain in detention. Neither then nor at any time later does the Minute seem to have been passed to the Director or to anyone else who actually took a decision.
v) July 2007: SK was sent a 'Monthly Progress Report to Detainees'. It is dated 13 June 2007 but internal evidence shows that the true date must have been July. Signed by a casework officer, this document (which set out the same reasons as in the previous documents though now reverting to and relying upon the factors which had been set out in the corresponding documents dated 16 January 2007 and 5 March 2007) again asserted that "It has been decided that you will remain in detention". That again was untrue, for the file shows that all that had happened by 13 July 2007 (the document is dated 13 June 2007 but internal evidence again shows that the true date must have been July) was that a Minute had been written by an official who said "It is therefore proposed that he should remain in detention". Further Minutes show that continuing detention was not authorised by the Director, as it should have been, until 2 August 2007.
vi) August 2007: SK was sent a 'Monthly Progress Report to Detainees' dated 15 August 2007. Signed by a casework officer, this document again asserted that "It has been decided that you will remain in detention". That again was untrue, for the file shows that all that had happened by 15 August 2007 was that a Minute had been written by an official who said "It is therefore proposed that detention be maintained". Further Minutes show that continuing detention was not authorised by the Director, as it should have been, until 30 August 2007. The 'Monthly Progress Report' dated 15 August 2007 set out the same reasons for detention as before but now identified the decision as having been based on:"the following factors:
- You have exhausted all of your rights of appeal and your removal from the UK is pending.
- You have obstructed the removal process by failing to co-operate with the application process to obtain an Emergency Travel Document.
- You do not have close ties to make it likely that you will stay in one place."
vii) September 2007: This review should have been conducted by the Director. There is no evidence that it was. SK was sent a 'Monthly Progress Report to Detainees' dated 19 September 2007 signed by a casework officer, this document again asserting that "It has been decided that you will remain in detention" (and setting out the same reasons and relying on the same factors as the corresponding document dated 15 August 2007). The file contains no other documentation relating to this review except for a Minute also dated 19 September 2007 prepared by a casework officer, proposing that detention be maintained, which does not contain any comments by and is not signed by anyone else. So again it would seem that the document sent to SK was untrue, for all that the file shows to have happened by 19 September 2007 was that the caseworker had made a "proposal" that SK should remain in detention. Neither then nor at any time later does the Minute seem to have been passed to the Director or to anyone else who actually took a decision.
viii) October 2007: This review appears to have been conducted by the Director, though the Minute is silent as to the date when he approved the recommendation for detention. Much the same thing seems to have happened as in September 2007. The 'Monthly Progress Report to Detainees' signed by a casework officer and sent to SK (and setting out the same reasons and relying on the same factors as the corresponding document dated 19 September 2007) was dated 12 October 2007 although by then all that had happened was that the caseworker had prepared a Minute and "proposed that detention be maintained". Assuming that the Minute did reach the Director, there is nothing to show that it had by the time the 'Monthly Progress Report' was signed. Since this judgment was prepared it has emerged that the decision was not in fact authorised by the Director until 5 December 2007. Mr Chamberlain accepts that in these circumstances a review in which the substantive recommendation precedes the Director's authorisation by over a month is not (on the basis of the findings in this judgment and subject to appeal) a valid review
ix) December 2007: This review should have been conducted by the Director. There is no evidence that it was. It appears to have been dealt with by a HEO. Much the same thing happened as previously. The 'Monthly Progress Report to Detainees' signed by a casework officer and sent to SK (and setting out the same reasons and relying on the same factors as the corresponding document dated 12 September 2007 with the omission of the third factor) was dated 3 December 2007 although by then all that had happened was that the caseworker had prepared a Minute, his "proposal" being to "maintain detention." Authority was not given until 6 December 2007, and then purportedly by a HEO. The insouciant manner in which this review was conducted is quite breathtaking, given that by 6 December 2007 not merely had the Secretary of State received the letter before action and the formal claim for judicial review but also that permission to apply for judicial review had actually been granted by Mitting J.
"The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a 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."
He continued at paragraph :
"This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the comer decisions or knocks on doors in the early hours. That is not our system."
"I agree detention should be maintained. Subject is lengthening his stay in detention by refusing to sign disclaimer. Removals to Zimbabwe are now in progress and every effort should be made to remove asap" (emphasis added).
Mr Chamberlain had to agree that the words I have emphasised are simply wrong. Removals of failed asylum seekers to Zimbabwe are not in progress. The Secretary of State's policy, Mr Chamberlain confirmed, is that set out in the 'Operational Guidance Note' dated 16 July 2007, namely that "The Home Office … continues to defer the enforced return of failed asylum seekers to Zimbabwe until the AIT has determined HS."
"Those acting for N could reasonably expect, having regard to those aspects of the Secretary of State's policy that had been made public, that N would not be detained on the ground that his removal was imminent. The only basis upon which the Immigration Service could treat his removal as imminent was by applying that aspect of the Secretary of State's policy which had not been made public, namely that no regard would be paid to an intimation that judicial review proceedings would be instituted. 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."
At para  Lord Phillips made the same point in relation to A's appeal:
"the detention was unlawful for the same reason that N's detention was unlawful. It was at odds with the Secretary of State's policy, as made public."
"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. I do not therefore have to consider the question of proportionality."
"A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act."
Section 40 of the Act provides so far as material that:
"(1) Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section –
(a) in the case of a person who has been arrested and charged, by the custody officer; and
(b) in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation.
(3) Subject to subsection (4) below –
(a) the first review shall be not later than six hours after the detention was first authorised;
(b) the second review shall be not later than nine hours after the first;
(c) subsequent reviews shall be at intervals of not more than nine hours …"
"In these circumstances the judge held that the plaintiff was being unlawfully detained as from 5.25am. I agree. Section 34(1) of the Act is mandatory. As already stated, it provides that a person shall not be kept in police detention except in accordance with the relevant provisions of the Act. The plaintiff was detained at 11.25pm on 30 July, so that by section 40(3)(a) a review of his detention should have taken place before 5.25am on 31 July. No such review took place. It follows, as I see it, that from that time the plaintiff was not being detained in accordance with the relevant provisions of the Act. It further follows from section 34(1) that his detention was thereafter unlawful until some event occurred to make it lawful."
"[Counsel] submits that, so long as circumstances existed which were or would be sufficient to justify continued detention, the plaintiff could not be fairly be said to be detained without lawful excuse. I am, however, unable to accept that submission. From 5.25am the plaintiff was not being detained in accordance with Part IV of the Act of 1984 because no review was carried out as required by section 40(1) and (3)(a). As I see it, it is nothing to the point to say that the detention would have been lawful if a review had been carried out or that there were grounds which would have justified continued detention. Part IV of the Act exists in order to ensure that members of the public are not detained save in certain defined circumstances. In all other circumstances every member of the public is entitled to his or her liberty …
In this case the plaintiff was entitled to the benefit of a review before 5.25am. In the absence of a review he was in principle entitled to his liberty. His further detention was therefore unlawful. In short he was being deprived of his liberty without lawful excuse. It follows that this was a case of false imprisonment".
"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."
That is a reference to rule 34 of the Detention Centre Rules 2001, which provides that every detained person shall, unless he does not consent, be given a physical and mental examination within 24 hours of his admission to a detention centre. The relevance of rule 34 for present purposes (and this was the point in R (D) is that a detainee who on such examination is found to have been the victim of torture will not continue to be detained except in very exceptional circumstances: see paragraph 38.10 of the Operations Enforcement Manual. Consequently, as Davis J put it in R (D) at para :
"In my view the combined effect of the Detention Centre Rules, the statement of Lord Filkin, the provisions of Chapter 38 of the Operation Enforcement Manual and the relevant provisions of the Detention Services Operating Standards Manual all point in one direction: which is that the medical examination required under Rule 34 of the Detention Centre Rules is a part – an important part – of the safeguards provided to assess whether a person, once removed to Oakington, should continue to be detained there under the fast-track procedure."
"what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity".
That case, it may be noted, had nothing to do with the liberty of the subject; it was a case where a litigant had made an application to the Immigration Appeal Tribunal by letter rather than using the prescribed form. It is merely one – albeit, as Mr Chamberlain pointed out, in the asylum context – of the long beadroll of cases grappling with what was once seen as the distinction between 'mandatory' and merely 'directory' provisions.
Inadequacy of the reviews actually carried out
Absence of jurisdiction to detain – Hardial Singh principle (i)
"so long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this".
That, in my judgment, exactly describes the situation here. The Secretary of State has throughout been, and I have no doubt remains, intent upon removing SK at the earliest possible moment. And although the Zimbabwean litigation has proceeded for much longer than anyone would have anticipated at the outset, and although the light at the end of the tunnel may not yet be as visible as the Secretary of State would like to imagine, there remains at least some prospect of her being able to achieve her ambition.
"the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake."
He also referred me to what Keene LJ said in R (A) v Secretary of State for the Home Department  EWCA Civ 804 at para :
"I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation, just because he has refused voluntary return?"
"I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making."
"What Toulson LJ did not address, because it was not necessary to address it on the facts, was whether or not a period of detention initially lawful could become unlawful by reason of it being unreasonably protracted."
Mitting J's answer, consistently it might be thought with Hardial Singh principles (ii) and (iii), was that it could. Moreover, as Mitting J had earlier recorded at para :
"the Secretary of State … properly concedes that it would not be a lawful exercise of that power to detain someone indefinitely simply to compel him to decide voluntarily to depart."
This is a topic to which I must return when I come to consider Hardial Singh principles (ii) and (iii).
Absence of jurisdiction to detain – Hardial Singh principle (ii)
"It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
Here, he says, the length of detention (22 months) is exceptional and almost unprecedented, the obstacles in the path of the Secretary of State are unusual and unique, being created by her own policy of not returning failed asylum seekers to Zimbabwe, and there are no effective steps she can take to surmount those obstacles, since none can be taken to lessen the risk in Zimbabwe to returned asylum seekers.
"While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has while nothing but fruitless negotiations have been carried on."
Laws J expressed himself "entirely satisfied" that whatever would have been "a reasonable period for this man's continued detention … has certainly now been exceeded" and ordered his immediate release. In R (I) v Secretary of State for the Home Department)  EWCA Civ 888,  INLR 196, the claimant had been imprisoned for three years and then detained for some sixteen months. He was ordered to be released. Simon Brown LJ, as he then was, said this at paras -, giving his reasons (as part of the majority of the Court of Appeal) for having released the applicant from detention at the hearing of the appeal the previous month:
" … Given … that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period …
 In short, I came to the clear conclusion that … it was simply not justifiable to detain the appellant a day longer; the legal limits of the power had by then been exhausted."
"In the present case there is a significant risk of absconding, but a risk of re-offending which the defendant accepts is not very high. Leaving aside the second claimant's mental condition, I would hold that the period of their detention (thirteen months to date for the first claimant, and nine months for the second claimant) is, despite its length, in the circumstances reasonably necessary for the purposes of the deportation order and so lawful. This degree of risk of absconding in my judgment, together with the claimants' refusal to go voluntarily, so that their detention was a product of their own making, justified the defendant a substantially longer period of time within which to arrange removal."
"The blunt facts are, therefore, that the claimant has been detained in administrative detention for two years and eight months. He cannot complain about the first nine months of his detention because it was occupied by his appeal against the deportation order and elongated by his own failure to engage with the original order promptly, thereby delaying the hearing of his appeal. So much is conceded".
Accordingly, Mitting J treated the relevant period in that case as being only 23 months.
Absence of jurisdiction to detain – Hardial Singh principle (iii)
Absence of jurisdiction to detain – Hardial Singh principle (iv)
"The detention review has not been signed by the Director in the signature box. The detention review was seen and approved by the Director electronically …
I am instructed that due to the fact that officers within the Criminal Casework Directorate are located in different offices, it is normal practice for Detention Reviews to be sent electronically for consideration and, where appropriate approval. Therefore it is not always practical for the Detention Review to be signed by hand, however where this is the case, Detention Reviews are authorised electronically. In this case, detention was reviewed and agreement was given. In this case, although agreement was given the name of the Director was not added to the 'Signed' section."
There is, of course, no objection to this process being undertaken electronically in the way described by the Treasury Solicitor. Nor is there any need for a handwritten signature. An electronic signature will suffice. But the Minute (the Detention review) should make apparent on its face, if it be the case, that the Director has in fact approved the recommendation for continued detention. And this means that if the document is to continue to have a space for the Director's signature, that signature should appear, even if only in some electronic format. The validity of the detention should be apparent on the face of the document – a document which would, after all, be a key element in the return the Secretary of State would have to make in answer to the writ if a writ of habeas corpus were to be issued. The court should not be driven to have to make the kind of inquiries which I had to direct to the Treasury Solicitor.