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
Susan Chan (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 8 June 2011
Crown Copyright ©
Graham Wood QC :
Immigration and Procedural History and Factual Background
The respective cases
The relevant statutory provisions
"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave………."
"(8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force."
The relevant parts of Section 82 provide:
"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c)] of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom)……………
(4)The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part."
"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j)…………
(4) This section also applies to an appeal against an immigration decision if the appellant—
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom…"
"(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.
(2) A person may not bring an appeal to which this section applies [in reliance on section 92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."
"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"4.—(1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable………"
"5.—(1) A notice given under regulation 4(1) is to—
(a) include or be accompanied by a statement of the reasons for the decision to which it relates; and
(b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person.
(3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of—
(a) his right of appeal and the statutory provision on which his right of appeal is based;
(b) whether or not such an appeal may be brought while in the United Kingdom;
(c) the grounds on which such an appeal may be brought; and
(d) the facilities available for advice and assistance in connection with such an appeal.
(4) Subject to paragraph (6), the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax.
(5) Subject to paragraph (6), where the exercise of the right is restricted by an exception or limitation by virtue of a provision of Part 5 of the 2002 Act, the notice given under regulation 4 shall include or be accompanied by a statement which refers to the provision limiting or restricting the right of appeal."
The Notice of Immigration Decision
"Where a notice fails to comply with any of these requirements, do the defects invalidate the notice, or is the notice still good? Guidance on this question was given by the Court of Appeal in Jeyeanthan, a case about a notice of appeal lacking the necessary declaration. The Master of the Rolls said that:
'the important question [is] what the legislator should be judged to have intended should be the consequence of non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory … Procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation.'"
The author suggested that three questions were likely to arise:
"(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
(b) Is the non-compliance capable of being waived, and if so, has it been, or can it and should it be waived in this particular case? (The discretionary question.)
(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)"
These considerations were expressed to apply to procedural requirements for both sides and at all stages of the appeal process. A notice which fails to tell an appellant of a right of appeal is likely to be held invalid, so that time would not begin to run for the purposes of appealing. More recent guidance given by the House of Lords is that the emphasis ought to be on the consequences of the non-compliance, asking whether it was the legislative intention that an act done in breach of the procedural requirements should be invalid. ( R v Soneji  1 AC 340) So, for example, where a notice of a decision to make a deportation order failed to specify the country to which the appellant was to be removed, the appellant, by giving notice of appeal effectively waived the requirement and all the parties knew to which country the appellant was to be deported and so were not prejudiced by the non-compliance. In those circumstances no prejudice was caused by the deficiency so that the notice was held to be valid.
"In R v SSHD ex parte Jeyeanthan  1 WLR 354 the Court of Appeal adopted a flexible approach in the specific context of immigration towards the effect of non-compliance with a procedural requirement: see, in particular, per Lord Woolf MR at pages 362 C-F and 366 C-D. Ex parte Jeyeanthan was one of the cases considered by the House of Lords in R v Soneji  1 AC 340, which is now the leading authority on the effect of non-compliance with a procedural requirement. The House of Lords held in Soneji that the mandatory/directory distinction had outlived its usefulness and that the emphasis ought instead to be on the consequences of non-compliance and asking whether it was the legislative intention that an act done in breach of the requirement should be invalid: see, for example, per Lord Steyn at paragraph 23. That approach is in line with, but is possibly more straightforward than, what was said in ex parte Jeyeanthan and in any event is the approach that in my judgment should now be applied."
The subsequent detention
"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."
"This case is about the way in which the power to detain can properly be exercised, but it raises issues about the existence of the power too. Does the Secretary of State's failure to comply with his published policy for regular reviews to monitor changing circumstances deprive him of his executive power to continue to detain the detainee? Or does his power continue until a review shows that continued detention is no longer appropriate? I think that an examination of the Hardial Singh principles may help to resolve these questions, as they give rise to the need for these reviews. But it is clear that the appellant cannot succeed in his claim by relying solely on those principles."
"Paragraph 38.1, headed 'Policy' refers to the 1998 White Paper 'Fairer, Faster and Firmer: a Modern Approach to Immigration and Asylum (1998) (Cm 4018)' in which it was said there was a presumption in favour of temporary admission or release and that detention would most usually be appropriate to effect removal, initially to establish a person's identity or basis of claim or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. …There then follows this important acknowledgement of the significance of the policy in public law:
'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]
Under the sub-heading "Use of Detention" these words appear:
'In all cases detention must be used sparingly, and for the shortest period necessary.'"
"Paragraph 38.3 is headed 'Factors influencing a decision to detain (excluding pre-decision fast track cases)'. It contains the following instructions:
'1. There is a presumption in favour of temporary admission or temporary release.
2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3. All reasonable alternatives to detention must be considered before detention is authorised.
4. Once detention has been authorised it must be kept under close review to ensure that it continues to be justified.
5. Each case must be considered on its individual merits.'"
"In Mohammed-Holgate v Duke  AC 437 , 443, Lord Diplock said that the Wednesbury principles are applicable not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for trespass by false imprisonment. It may be that not every public law error will justify resort to the common law remedy in every case. But I do not think that it is necessary to show that there was bad faith or that the discretion was exercised for an improper purpose in the present context. Where there is an executive discretion to detain someone without limit of time, the right to liberty demands that the cause of action should be available if the discretion has not been lawfully exercised. In R v Deputy Governor of Parkhurst Prison, Ex p Hague  1 AC 58 Lord Bridge of Harwich said that the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. The requirements of the 1971 Act and Hardial Singh principles are not the only applicable law with which the Secretary of State must comply. Nadarajah's case shows that lawful authority for an executive power of detention may also be absent when there is a departure from the executive's published policy. ………
41 …………it seems to me to indicate that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise.
42 That is a proposition which can be applied to this case. The published policy narrowed the power of executive detention by requiring that it be reviewed regularly. This was necessary to meet the objection that, unless it was implemented in accordance with a published policy, the power of executive detention was being applied in a manner that was arbitrary. So it was an abuse of the power for the detainee to be detained without his detention being reviewed at regular intervals. Applying the test proposed by Lord Dyson in Lumba , it was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out:  2 WLR 671, para 68."
i) Has the Defendant shown that removal was imminent at any time after 9th June?
ii) Was the period of detention reasonable in all the circumstances?
iii) At any time before the expiry of the period was it apparent to the Defendant that removal could not be affected within a reasonable time?
iv) In any event, in accordance with its own accepted policy, has the Defendant shown that it has considered all possible alternatives to detention?
"It is therefore important to ensure that (the reasons) are always justified and correctly stated......If any of the reasons for detention given on the form IS91R change, it will be necessary to prepare and serve a new version of the form."
"c. Your removal from the United Kingdom is imminent."
"2. You have previously failed to comply with conditions of your stay, temporary admission or release."
"7. You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK. "
"8. You have previously failed or refused to leave the UK when required to do so, to leave."