QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy Judge of the High Court
| THE QUEEN ON THE APPLICATION OF
|- and -
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Steven Kovats (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 3 June 2009
Crown Copyright ©
Mr C.M.G. Ockelton :
"Those scars could just as easily have been caused in a variety of different ways especially in the case of a man who has been a soldier in Rwanda for 13 years during a time of war, civil strife and genocide in his country. I note that the appellant did not need any medical treatment following his temporary release and I therefore attach little weight to the medical report."
"His mood is low, he has thought repeatedly of killing himself. He has difficulty getting to sleep and is frequently woken by nightmares about his experiences during his imprisonment. He also experiences intrusive memories (which he cannot block) and flashbacks (in which he sees the assaults on him as though they were occurring before his eyes). He tries to associate with others but is now uncomfortable doing so and usually prefers to be alone. His concentration and short term memory are impaired."
"Taken in the round, the history given, his psychological state and physical signs demonstrate a reasonable likelihood that he is a survivor of torture. It is disturbing that his history of torture and consistent signs (and blood pressure) were not recorded at the time of his admission to detention".
The present claim
The first decision letter
The claimant's detention
"in the exercise of there functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the Immigration Rules) as may be given them by the Secretary of State",
and there is nothing in the Immigration Rules relating to detention. The policies in question are before me in the form of an undated version of chapter 38 of the Secretary of State's Operational Enforcement Manual. It appears to be agreed that that document provides an accurate guide to the policies operative on 30 November 2007. The chapter begins by setting out general principles, of which the most important is that there is a presumption in favour of temporary admission or release and that wherever possible an alternative to detention is to be used; detention must be used sparingly, and for the shortest period necessary. The procedure for exercising the power to detain is set out at para 38.6; and at para 38.6.3 there is a requirement of the use of a form 'IS91R Reasons for Detention'. Six possible reasons are listed in the paragraph and on the form, and it appears clear from the context that detention will not be in accordance with the guidance unless at least one of the six reasons is applicable. They are as follows:
"Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under para 353 or otherwise."
So, until the submissions have been considered, no removal can be regarded as imminent. In the present case there were in Mr Goodman's submission two problems. First, although there had been a decision to reject the further submissions, it had been made on a wholly inappropriate basis. It could not therefore be said that the Secretary of State had "considered the submissions". Secondly, the actual arrangements made for removal could not be carried out because of the difficulty about the route.
"There is nothing in the wording of ... the statute to suggest that where a notice is withdrawn or set aside by the court as a result of proceedings for judicial review the arrest and the period of detention will be retrospectively rendered unlawful. Such an interpretation would cause serious problems not only for the Secretary of State, but also for those like the [Immigration Officer] who are instructed to act on his behalf".
"it is unhelpful and unnecessary for the Immigration Officer to have to go through the exercise of trying to predict whether an appeal against refusal of leave to enter was bound to succeed".
"[I]t seems entirely wrong that someone who has been wrongly detained by the executive because of a filing error or some other incompetence in their offices should not be entitled to compensation as of right."
"I see no reason, incidentally, in relation to a claim against a first actor, to obtain first either a declaration that the detention was unlawful or a quashing order: it is sufficient that the claimant was unlawfully detained on his authority and suffered damage as a result."
"(1) ... [I]ndividuals requiring leave to enter enjoy no right or presumption that they should be entitled to be at large before leave is granted;
(2) A wide discretion is given to the Immigration Officers not only whether to admit detain or release but also in respect of the investigations they are entitled to make;
(4) It is not contested in this case that the plaintiff was lawfully detained at all times; and
(5) It is not contended that an invalid decision authorising detention makes the detention unlawful".
"the decision to detain can be rendered unlawful if the underlying refusal of leave to enter is tainted. However, ... the taint must take the form of either bad faith (which is not alleged in this case) or irrationality. Thus ... it the refusal of leave to enter is one which no reasonable Immigration Officer could make in the traditional Wednesbury sense, the decision to detain which is dependent on it, will also be unlawful and the claim for unlawful detention can succeed."
The Judge agreed with that. He went on to give his view on the second point on which Mr Palmer, appearing for the Secretary of State, disagreed with Mr Cox who appeared for the claimant.
"Mr Palmer's second disagreement with Mr Cox's formulation concerns the identity of the holder of the information in respect of which a rationality judgment is to be made. Mr Cox, as I have said, submits that I should look at the facts known to the Secretary of State, in other words, knowledge held by any immigration official. Mr Palmer argues that this is too wide. What matters is the information available to the actual Immigration Officer who took the decision to refuse leave to enter. Of course, immigration officials will consult their colleagues, but the Home Office is a vast repository of information and even diligent and conscientious officials will not always be aware of something which is held elsewhere in the organisation. There are examples of that in this case. ... [A letter had gone astray] but it cannot be shown that the Immigration Officer who authorised the claimant's detention was aware of this. Mr Palmer would say that the rationality of the decision should not therefore be judged by reference to it. [Another letter had been sent to an unknown addressee in the Home Office, and had since emerged.] But it as well cannot be shown to have been known to the Immigration Officer who authorised detention. Mr Palmer would say that this, too, should be ignored in considering the rationality of the decision to refuse leave to enter.
8. Again, I agree with Mr Palmer on this matter. It is, of course, always open to an applicant for leave to enter to provide the Immigration Officer with any information which he or she considers would assist their case. If information or documents have already been sent to the Home Office that can be drawn to the Immigration Officers' attention. In other situations there may be a question as to whether the Immigration Officer has made sufficiently diligent enquiries in order to obtain information held elsewhere in his organisation, but in this case I do not think that any such criticism could be made."
The "same day" removal process and its mechanism
The second decision letter