QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
SITTING AT NOTTINGHAM COUNTY COURT
60 Canal Street, Nottingham, NG1 7EL
B e f o r e :
| The Queen on the application of Malek Hossein Abdollahi
|- and -
|Secretary of State for the Home Department
Susan Chan (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 23 February 2012
Crown Copyright ©
Mr Justice Beatson :
The claimant's case
"subject to obtaining his identity number given at birth, his birth certificate, and arranging an interview with the Iranian Embassy (if he volunteers), his removal can be made within a reasonable timescale. Mr Abdollahi also has an outstanding asylum appeal as a dependent on his wife's application."
A note on the document refers to the fact that the family re-entered the United Kingdom after returning to Iran under the VARRP scheme, which conduct is described as "blatant abuse" of the scheme. The writer of this part of the report appeared to believe that the family had also been detained, because she authorised "their detention" for a further 28 day period.
Detaining under immigration legislation is a serious step. Where is it decided to detain a family the normal process should be that they remain together, and therefore splitting families for detention and removal purposes is also a very serious decision that needs to be taken at a senior level within the UK Border Agency. UKBA staff should have regard to the need to safeguard and promote the welfare of the child before deciding to split a family. For the purposes of this instruction, splitting a family can be defined as separating family members who have an existing family life and where the split would have an impact on a child's life. There is a complex balance to be struck between allowing the child to continue their life in the community and re-uniting them with a parent who is to be deported. Any decision to split a family, whether it be through deportation, detention, or release, requires consultation at the earliest possible juncture with the OCC (via the procedure outlined at section 1.1) and clearance at CCD Director level."
"Where detention of an individual under immigration powers is being considered and this will involve splitting a family, then the decision must be approved by the CCD Director
Staff should note that at the end of the custodial sentence, the decision to detain an FNP may involve splitting the family for immigration purposes (if it is decided not to detain the family). This will be the case even if the ex-prisoner is held in the same institution where they served their sentence. This is because the criminal courts will have already considered the welfare of the family in awarding the sentence. Consequently, the transfer of the prisoner to immigration detention requires the family issue to be reconsidered, now that the prescribed sentence has been served. If, after consultation with the OCC, it has been determined that in this situation CCD are splitting a family (and the split is proportionate) then staff should seek directoral clearance as described below.
In order to safeguard and promote their well-being, it will be appropriate to ensure enquiries (with the OCC) about the welfare of the child are made as early as possible. As in all cases, detention should be considered in line with CCD's current policy, i.e. there must always be a presumption against detention and each case must be considered on its individual merits. …"
"A decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain."