QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF MEDICAL JUSTICE)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jonathan Swift QC and Joanne Clement (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 15 and 16 June 2010
Further written submissions and further evidence supplied from 7 June 2010 until 2 July 2010
Crown Copyright ©
Mr Justice Silber:
(a) abrogates the constitutional right of access to justice without statutory authority and is therefore ultra vires;
(b) cannot rationally be justified;
(c) fails to pay due regard to the Secretary of State's duties under the Race Relations Act 1971 ("RRA") and the Disability Discrimination Act 1995 ("DDA");
(d) violates article 5(4) and article 6 of the European Convention on Human Rights ("the ECHR"); and
(e) discriminates unfairly against those to whom it is applied contrary to article 14 of the ECHR when read together with articles 5, 6 and 8 of the ECHR.
II. History of the Policy under Challenge
"a few small changes to make the policy clearer and to ensure that it was consistently applied across the UKBA".
(a) "When removal directions are served on the individual being removed, they should always be copied to legal representatives where the UK Border Agency has details of any representative actively involved in the case, or where a person asks that a specified representative be sent copies of papers served with removal directions" (paragraph 2);
(b) "Removal directions should also be accompanied by a short factual summary of the case which should include a chronology of the case history, including details of whether any appeal rights were exercised and past applications for judicial review" (Ibid);
(c) "A minimum of 72 hours (including at least 2 working days) must generally be allowed between informing a person of their removal directions and the removal itself. The last 24 hours of this period must include a working day. There are occasions where this will not apply. (see section 3 of this guidance) which you should consider before setting removal directions People detained for removal should, where possible, be given access to telephone facilities to enable instruction of and ongoing contact with representatives" (paragraph 2(1));
(d) This period does not take account of Bank Holidays which must be added in as extra non-working days;
(e) "In the case of third country and NSA cases, a minimum of 5 working days notice should be given between setting of removal directions and removal" (paragraph 2.3) (but that does not take account of Bank Holidays which must be added in as extra non-working days). "There are instances where standard notification might not be required which would be considered before setting removal directions" (paragraph 2.5); and that
(f) "All claimants being removed by charter flight (with special arrangements) will be given a minimum of 5 working days notice of removal so that they have the opportunity to take legal advice. The purpose of the extended period of notice of removal directions is to minimise the number of last minute applications for injunctive relief and to encourage claimants to inform the UK border agency at the earliest opportunity of any further representations they want to make. It may be necessary for security reasons to withhold the exact details of departure and/or the destination but in those cases claimants would still be given 5 working days notice of removal but they would be informed that they will be removed "no sooner than five working days" from the date when removal directions are issued" (paragraph 2.3).
"Where an exception is applied you must ensure that you apply certain safeguards:-
(i) You must let the legal representatives know by fax as soon as the removee is told and where possible bring the matter to the attention of the legal representatives.(ii) If asked, you must allow the individual to speak to their legal representatives. This may involve providing the removee with a mobile phone.(iii) Where possible, you must schedule the removal for a working day, during office hours.(iv) Where you provide the removee with less than standard notification of removal, you should nonetheless provide as much notice as possible.(v) The application of an exception should where possible only delay service of the removal directions. If possible it should not delay service of a decision to refuse any immigration application or further submission.(vi) You must obtain written authority at Deputy Director level before applying any of these exceptions (other than in Port cases) and send details to the Litigation Management Unit. Where removees are held within an Immigration Removals Centre you should obtain an authority from a Deputy Director from within detention services".
"This list of safeguards is not definitive, it may be appropriate to build in other safeguards on a case by case basis to ensure that removees have effective access to the courts".
|From 11 January 2010 (i.e. present policy)
||Before 11 January 2010, and with effect from 12 March 2007
|Standard notification of removal directions
72 hours minimum between (a) notification of removal directions; and (b) removal. Including at least 2 working days; last 24 hours to include a working day
72 hours minimum between (a) notification of removal directions; and (b) removal. Including at least 2 working days; last 24 hours to include a working day[§60.4]
|Third Country ("TCU") and NSA cases
5 working days minimum notice between (a) setting of removal directions; and (b) removal.
|Third Country and NSA cases
3 working days minimum between (a) serving certification decision; and (b) removal.
|Exceptional cases, notification of removal directions
|Categories of exceptional case
• Where service of removal directions will create a risk of suicide or self harm and that risk is medically document [§.1.1]
|Categories of exceptional case
(1) Where prompt removal is in the best interests of the person concerned due to:
• Medically documented cases of potential suicide or risk of self-harm [§60.6](2) Port cases [§60.6]
|From 11 January 2010 (i.e. present policy)||From 11 January 2010
In exceptional cases, notifications may be given in accordance with §3.1 and may be less than 72 hours
In exceptional cases, less than 72 hours notification may be given
|When removal will/may be suspended following service of removal directions
||When removal will/may be suspended following service of removal directions
|If judicial review proceedings are commenced and issued, and Claim Form and Detailed Grounds received by UKBA, UKBA will defer [§4.1 (1)] unless the exceptions at section 7 apply.||If judicial review proceedings are commenced and issued, and Claim Form and Detailed Grounds received by UKBA, UKBA will defer [§60.8] subject to certain exceptions.|
|If judicial review proceedings are commenced and issued which do not comply with section II of Practice Direction 54A (e.g. Detailed Grounds are not provided) and the claimant has provided a statements of reasons for non-compliance, UKBA will defer removal if (a) the court decides that good reason has been provided for failure to comply; (b) permission to proceed to judicial review is granted, or (c) the court has not yet considered the matter by the time/date of removal.
||If judicial review proceedings are commenced and issued which do not comply with Section II of Practice Direction 54A (e.g. Detailed Grounds are not provided) and the claimant has provided a statements of reasons for non-compliance, UKBA will defer removal if the court has not yet reached a decision on whether good reasons has been provided for failure to comply.|
|If Administrative Court Office closed, UKBA may defer where a copy of Detailed Grounds is provided to UKBA [§4.1 (3)].||If Administrative Court office closed, UKBA may defer where a copy of Detailed Grounds is provided to UKBA and the person undertakes to lodge them with the court at the earliest opportunity [§60.7].
|In a Section 3 Case, if it is also a TCU or NSA case
UKBA should normally defer removal on threat of judicial review proceedings "if there has been no reasonable opportunity to obtain a Crown Office reference number" [§5].
|In TCU or NSA cases
UKBA will defer removal for 3 working day son threat of judicial review made orally or in writing by a person due to be removed or their legal representative [§60.7.1].
(a) certain medically documented cases where "service of removal directions will create a risk of suicide or self-harm and that risk is medically documented" (paragraph 3.1.1). This exception has been in place since March 2007 pursuant to the 2007 document;
(b) "where the enforcement officer believes that it is not in the best interests of unaccompanied children because of an abscond risk, this must be considered in liaison with Children's Services and the receiving country" (paragraph 3.1.2). Prior to January 2010, this had applied since March 2007 only to third country removals namely removals within the European Union under the Dublin Regulation The Secretary of State is no longer invoking this exception pending the outcome of a review as I will explain in paragraph 123 below;
(c) where the Secretary of State believes that standard notification is not in the best interests of another because there is a threat or credible risk that the person about to be removed would seek to harm other detainees if notified of removal (such as a parent threatening to harm his or her child) which could not be managed in any other way;
(d) where the Secretary of State considers reduced notice is necessary to maintain order and discipline at a detention centre either because an individual has frustrated removal in the past or because there is evidence that they are planning actions which seriously threaten the good order and discipline of the detention centre. There are limitations on where that exception can be applied as I will explain; and
(e) where the removee consented in writing to reduced notification.
III. The Issues and Preliminary Points
(a) abrogates the constitutional right of access to justice without statutory authority and is therefore ultra vires ("The Access to Justice Challenge") (see paragraphs 43 to 113 below);
(b) cannot rationally be justified ("The Rationality Challenge") (see paragraphs 113 to 150 below);
(c) fails to pay due regard to the Home Office's duties under the RRA and the DDA ("The Discrimination Challenge") (see paragraphs 151 to 168 below); and
(d) violates articles 5(4) and (6) of the ECHR and discriminates unlawfully against those to whom it is applied contrary to article 14 of the ECHR when considered together with articles 5, 6 and 8 of the ECHR ("The article 14 Challenge") (see paragraphs 169 and 170 below).
"6…A more appropriate question, in our view, is the one posed by [counsel] for the Home Secretary: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in [counsel for the claimant]'s alternative approach of seeking to construct a 'typical' case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry - that is to say, when no more is known of each one than that he is an adult male asylum-seeker from a country on a departmental 'white list' - at unacceptable risk of being processed unfairly. This, therefore, is the question which we propose to address.
7. We accept that no system can be risk-free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects. This is why the intrinsic fairness of the fast-track system at Oakington was dealt with by this court as a discrete issue in R (L) v Secretary of State for the Home Department  1 WLR 1230, paras 48-51".
I will apply that approach which is not disputed by either party.
(a) "It should, as a matter of common sense and common humanity, depend upon the gravity of the consequences contemplated by [the statutory provision] on the one hand of permitting, and on the other of refusing, the return of the fugitive if the court's expectation should be wrong" (994D) and
(b) "…bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or the other, I do not think that the test of the applicability of [the statutory provision] is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel [with the test of] 'a reasonable chance' 'subsequently grounds for thinking', 'a serious possibility' – I see no significant difference between these ways of describing the likelihood" (994 G-H).
"7….judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inherent in the system itself".
IV. The Access to Justice Challenge
43. It is not disputed that a citizen's right to access to justice is an important constitutional right and that the 2010 exceptions have to be considered in the light of this right. It is settled law that: -
(a) "it is a principle of law that every citizen has a right of unimpeded access to a court" per Steyn LJ giving the judgment of the Court of Appeal in R v Secretary of State for the Home Department, Ex parte Leech  QB 198, 210;
(b) rules which did not comply with that principle would be ultra vires (ibid) citing Lord Wilberforce in Raymond v Honey [1983 1 AC.1, 13]; and that
(c) "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" per Lord Steyn with whom Lords Hoffman, Millett and Scott of Foscote agreed in R (Anufrijeva) v Secretary of State for the Home Department  1 AC 604 at 621.
(i) is ready to provide legal advice in the limited time available prior to removal, which might also entail ensuring that the provider of the advice would be paid;
(ii) is willing and able to provide legal advice under the seal of professional privilege in the limited time available prior to removal which might also entail being able to find and locate all relevant documents; and
(iii) (if appropriate) would after providing the relevant advice be ready, willing and able in the limited time available prior to removal to challenge the removal directions.
(ii) The issues
(i) the circumstances in which a person subject to removal under the 2010 exceptions might wish to challenge the removal directions and so invoke the right of access to justice (see paragraphs 50 to 59 below);
(ii) how easy or possible is it for a person served with removal directions covered pursuant to the 2010 exceptions to obtain access to justice and how easily is access available or possible in cases (see paragraphs 60 to 80 below);
(iii) whether the safeguards in the 2010 exceptions are adequate to ensure the right to access to justice of those subject to it is preserved (see paragraphs 81 to 104 below); and
(iv) the practical operation of the policy of giving reduced periods of notice (see paragraphs 105 to 111).
(iii) The circumstances in respect of which removal directions may be amenable to judicial review
"14. The Home Office practice involving delay in deciding a claim but then of arresting and serving the refusal at one and the same time with a view to removal within a day or two, often at weekends and frequently early in the morning, is one that is to be deplored this court has deplored it on many occasions. It leads to unnecessary applications to the duty judge. It has the effect of preventing those who are to be removed from seeking proper legal advice to which they may be entitled and, even if the Home Office takes the view that there is no conceivable merit to be both found in any possible challenge, this is not the way to go about it. A reasonable time must be provided to enable representations to be made, if any are to be made, certainly to enable advice to be sought if the person to be removed wishes to obtain it. Quite apart from anything else, the approach to the duty judge will almost inevitably result in an order preventing the removal until the matter can be sorted out, either the following day or the next working day, when an application can be put before the Administrative Court. The result is that the flight ticket has to be given up -- it is often more than one ticket because frequently an official will accompany the person to be removed -- so public money is inevitably wasted."
(a) very extensive delays occur in very many cases between the conclusion of the statutory appeal process and the service of removal directions. Indeed, these delays can and often do span a number of years and the consequence has been explained carefully by Stephen Symonds, the Legal Officer for ILPA, who states that these delays can lead to a change of circumstances of the person about to be removed in his or her country of origin and that might lead to the article 2 and article 3 rights of the person about to be removed being at risk of being infringed if the removal directions are complied with;
(b) the personal circumstances of the individual concerned may have altered in the United Kingdom in the light of the extensive delay between the conclusion of the appeal process and the service of removal directions. The appellate courts have emphasised in recent years the growing significance of personal relationships as constituting a ground for preventing removal because of article 8 rights especially where children of the person to be removed would be adversely affected by the removal of a parent. There are also areas where the law has changed recently such as protection has recently been given to members of the gay community who face persecution in the place to which they are to be removed (see HK (Iran) v Secretary of State and HT (Cameroon) v Secretary of State  UKSC 31);
(c) the arguments against removal may not have been put forward earlier in the appeal process because many failed asylum seekers and others subject to removal will have received inadequate or no representation during the course of their initial application and the appeals process. By the same token, others will have had difficulty in obtaining publicly-funded representation at all and in consequence important information has not been obtained. In my work, I have to read many decisions of immigration judges and it is striking how increasingly frequently claimants are not represented. Mr Stephen Symonds the Legal Officer of ILPA explains the difficulties of those subject to removal in obtaining access to publicly-funded legal advice and representation while Joanna Swaney the supervising solicitor at RMJ, which is now in administration, explains that her experience of providing legal advice to those subject to removal directions and those of other solicitors in her team is that they are frequently called on to represent people whose cases had been inadequately prepared and presented to the Immigration Judge or where further evidence has come to light, which undermines findings made against that person by the Secretary of State or by the Immigration Judge; and
(d) many of those subject to removal might well have had their claims fast-tracked and the difficulties of properly representing people subject to fast-track decisions in the appeals process is greatly increased. Indeed fast-tracking means as with all expedited hearings that there is inevitably an increased risk that important points might well have been missed and significant evidence might not have been adduced.
(iv) The difficulty of obtaining legal representation if the 2010 exceptions are applied
"in setting the revised minimum time frames for notification of removal we have had to balance the need to ensure proper access to court with the public interest in establishing a robust removal process that makes sufficient use of limited detention facilities".
(a) Changes to the legal aid system introduced by the Legal Services Commission since the advent of contracting in 2000 have led to a significant decline in the number of lawyers available to give advice. He explains that the most recent Legal Services Commission ("LSC") Civil Contracting Report dated April 2010 shows that in 2001/2002, there were 458 solicitors who were immigration and asylum legal aid contract holders but by 2009/2010 that number had reduced to 170. The number of "not for profit" immigration and asylum legal aid contract holders had remained the same at 69. The overall reduction is therefore from 527 contract holders in 2001/2002 to 239 contract holders in 2009/2010 which means that the number has more than halved. Mr Stobbs says that this reduction has only compounded pressures on existing lawyers to meet the demands on them in this highly specialized area. I should add that with the demise of RMJ, this number will have reduced even further because, as I have explained, it together with IAS provided about one-third of all publicly-funded asylum and immigration work in the United Kingdom;
(b) He queries how a detainee without a legal representative would know how to contact or identify a new legal representative. This is borne out by a report by Dame Ann Owers, HM Chief Inspector of Prisons relating to an announced inspection of Harmondsworth Immigration Removal Centre carried out between 11 and 15 January 2010 (which was significantly just when the 2010 exceptions were coming into effect) in which she found that:- (i) detainees had problems with access to prompt legal advice and representation; (ii) there was inadequate information about legal rights; and (iii) the library had no up-to-date legal reference material. This is a matter of great importance as many of those subjected to the 2010 exceptions are detained in this centre prior to removal;
(c) Even when a detainee did have a legal representative, it is possible that they would no longer have possession of the contact details of their representative which was particularly likely where they were detained at short notice in a removal centre. Mr Stobbs explained that there was a high level of mental illness, stress and "low English language ability" among detainees and these factors were likely to compound their difficulties;
(d) If a detainee did not have legal representation, there was a risk that a fax was to be sent off randomly to any legal representative without enquiries first being made as to whether they are suitable or able to take on the case. He explained that there was no assurance that the legal representative or the person proposed to be a legal representative would receive the fax and would be able to respond especially as it was questionable how faxes were monitored by legal representatives outside business hours, such as on weekends and on public holidays;
(e) The effect of a removal taking place at short notice would involve a significant amount of work for members of the Law Society and it would not always be possible for them to take on at such short notice, cases particularly for those who are not existing clients in the light of the legal representative's pre-existing heavy case load; and that
(f) Legal aid policy also has a significant adverse impact on the ability of representatives to take on urgent removal cases because in publicly funded cases, the LSC will not pay for work until a legal representative has closed the case. This meant that legal representatives closed their files as soon as they could and then placed the papers in archives. Thus, it is possible that, in the case of people who have had their cases determined a significant period of time previously, that their legal representative will have ceased acting for this client and will also have archived their papers and so they will not be easily accessible. This would make it extremely difficult for an existing legal representative but especially for a new legal representative to obtain the necessary papers in time and to therefore take on the case.
"the current policy of [giving] less than 72 hours notice in the categories of cases to which the 'exception' is applied has the effect of depriving persons facing removal of the opportunity to obtain access to legal advice and, if so advised, access to the Court".
(v) The safeguards
"Reduced notice of removal does make it harder to lodge judicial review applications. This is a valid issue which we will counter by ensuring that we only reduce notice periods as a last resort and that we ensure that clear safeguards are put in place".
"This list of safeguards is not definitive. It may be appropriate to build in other safeguards on a case by case basis to ensure that removees have effective access to the courts".
"the position of the IAS is that the current policy of less than 72 hours notice in the category of cases where the 'exception' is applied has the effect of depriving the persons facing removal of the opportunity to obtain access to legal advice and, if so advised, access to the court".
"You should not normally defer removal on the threat of a JR where there is just a threat of judicial review. Removal directions should remain in place until a Crown Office... reference or injunction is obtained. All threats of judicial review should be referred to the Operational Support and Certification Unit who will consider whether it is appropriate to maintain removal directions;
In all cases if a person is unable to file a claim because the Administrative Court Office is closed you should still consider whether the deferral is appropriate where a copy of detailed grounds is provided to UK BA and lodged with the court at the earliest opportunity. A decision whether to defer in those circumstances would be taken by [Operational Support and Certificate Unit];
In [third country unit] and [non in-country appeal] cases a threat of judicial review made in circumstances where an exception to standard notification of removal has been applied (as set out in section 3 of this guidance) should normally be enough to defer removal if there has been no reasonable opportunity to obtain a Crown Office reference number".
(vi) The practical operation of the policy of giving reduced notice
V. The Rationality Challenge
(ii) Medically documented cases
"You may not need to provide standard notice of removal directions prior to removal where service of removal directions will create a risk of suicide or self harm and that risk is medically documented."
"..decisions are always taken on a case-by-case basis taking into account the needs of the individual and their personal circumstances. This situation would be carefully considered before the exception is applied".
"You may not need to provide the standard notice of removal directions prior to removal where you believe that it is not in the best interests of unaccompanied children because of an abscond risk. This must be considered in liaison with Children's Services and the receiving country".
"is taken having regard to the need to safeguard and promote, and with the best interests of the child as a primary consideration".
(iv) Best interests of another
"You may not need to provide standard notification of removal directions prior to removal where it is in the best interests of another because there is a threat or a credible risk that the removee would seek to harm other detainees if notified of removal (e.g. a parent threatening to harm his or her child) which could not be managed in another way.
Evidence of a threat or risk that the removee would seek to harm others must be fully documented. Normally, the threat should be managed by separating the threatening individual from others. This exception may only be applied in exceptional case where there is no other practical way of managing the removal safely."
(v) To maintain order
"Where it is necessary to maintain the order and discipline of the Immigration Removal Centre (IRC) or short term holding facility, standard notice of removal may not be needed in cases which meet the following criteria:-
1. Where there is a history of non-compliance in an attempt to frustrate removal, either during or immediately before a removal is due to take place. There must be reason to believe that an attempt to remove him or her with advance notification seriously threatens the good order and discipline of the IRC which cannot be managed effectively in another way and;
2. Where there is evidence to show or strongly suggest that an individual is planning on actions, which seriously threaten good order and discipline in an Immigration Removal Centre or short-term holding facility.
An attempt to frustrate removal could be, but is not limited to:-
- violence or refusal to comply with instructions e.g. to leave the centre;
- attempts by the detainee to frustrate his removal, the removal of a member of his/her family who is also detained or the removal of another detainee being held in the same facility"
"This exception should not be applied where
- The disruption could be managed in another way without reducing the notice of removal. For example all effort should be made to find alternative secure accommodation where the individual could be prevented from creating disorder.
- The evidence to the history of disruption relies upon behavioural actions that the individual may have taken prior to be taken into detention when they have been frightened or distressed.
- The evidence of a history of disruption relies upon hearsay and has not been properly recorded and documented.
- Removal was previously delayed by the disruptive behaviour of others where the subject of the removal (and their families) have not been involved in the disruption in question".
(vi) Consent to Removal
"Standard notification of removal may not be needed if the individual concerned wishes to be removed and has provided their consent, in writing to reduce notification. If there is an outstanding immigration claim you must ensure that the claim has been withdrawn. If an injunction preventing removal exists you must inform the appropriate court of the individual's intention before removal takes place and if necessary ensure the injunction is discharged (in such instances you should first check the position with the Operational Support and Certification Unit).
Once written consent is given a copy must be immediately faxed to legal representatives where the UK Border Agency has details of any representation actively involved in the case".
(vii) Failure to consult
"47…as a condition of the exercise of a statutory function; but in the present context it seems to me a duty to consult would require specificity which the courts concerned, as they are with developing principles, cannot furnish without assuming the role of a legislator".
"Did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"
VI. The Discrimination Challenge
"(1) Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities even where that involved treating disabled persons more favourably than other persons".
"(1) ..shall in carrying out its functions have due regard to the need –"
(a) to eliminate unlawful racial discrimination; and(b) to promote good relations between persons of different racial group"
(a) "we do not accept either section 49A (1) in general or section 49A (1) (d) in particular imposes a statutory duty on public authorities requiring them to carry out a formal disability equality impact statement when carrying out their functions. At most it imposes a duty on a public authority to consider undertaking an assessment, along with other means of gathering information, and to consider whether it is appropriate to have one in relation to the function or policy at issue, when it will or might have an impact on disabled persons and disability" ;
(b) "...those in the public authority who have to take decisions that do or might affect disabled persons must be made aware of their duty to have "due regard" to the identified goals. Thus an incomplete or erroneous appreciation of the duties will mean that "due regard" has not been given to them" ;
(c) "the "due regard" duty must be fulfilled before and at the time the particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind.. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision are not enough to discharge the duty.." ; and that
(d) "the duty must be exercised in substance, with rigour and an open mind. The duty has to be integrated within the discharge of the public function of the authority. It is not a question of "ticking boxes"" .
"the question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning" (per Dyson LJ in Baker v Secretary of State for Communities and Local Government  EWCA Civ 141 ).
(ii) The position in 2007
(iii) The position in 2010
a. under the heading "Policy Aims, Objectives and Projected Outcomes" it is only the aims and objectives of the new exceptions and not the self-harm and unaccompanied children exceptions which are set out ;
b. under the heading "Key Benefits" it is only the benefits of removing more easily those who are "seriously disruptive", "prepared to harm others" and "reduced detention following failed removals" which are identified and there is no consideration of any benefits or the impact or possible adverse effects in relation to self-harm or unaccompanied minors categories;
c. under the heading "Assessment and Analysis" it is only the effects of the new exceptions, which are analysed ; and that
d. it is stated in the Assessment that "no specific impact on those with a disability has been identified. No additional research has been carried out" and this has to be considered in the light of the fact that the categories in relation to self-harm or unaccompanied minors are likely to have a specific impact on disabled people. Indeed nothing to the contrary was suggested by Mr Swift at the hearing. In my view this shows that the existing categories were not considered.
(iv) Consequences of non compliance
"49… Inattention to it is both unlawful and bad government. In the present case, absence of [an "assessment"] was the result not of inattention but of a mistake made by the Secretary of State... In my view it sent out quite the wrong message to public bodies with responsibilities under "Section 71" to allow that deficit to be cured by a review only undertaken 8 months after the [rules] had been laid, and in the face of an adverse court decision".
VII. The ECHR Challenge