England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/01/2016

Mrs Justice Elisabeth Laing DBE:

Intro

1. This is a challenge to two decisions

i) to remove the Claimant and her three children to Nigeria under section 10 of the Immigration and Asylum Act 1999 ('the 1999 Act') and

ii) to detain the Claimant and her three children pending their removal.

2. The first decision is said to be unlawful because

i) the Claimant had an in-country right of appeal which was a barrier to removal,

ii) the Defendant did not pay sufficient regard to the welfare of the Claimant's children, contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 ('the 2009 Act'), and

iii) the Claimant is entitled to indefinite leave to remain ('ILR') because she has lived in the United Kingdom for more than 20 years.

3. The challenge to the second decision is on two grounds:

i) the Claimant had an in-country right of appeal at the time she was detained, and

ii) the decision involved a breach of the Defendant's policy in relation to the detention of families.

4. Permission to apply for judicial review was granted by Patterson J on the papers on 18 August 2015. At the hearing, the Claimant was represented by Miss Jones, and the Defendant by Mr Westaway. I am grateful to both for their helpful oral and written submissions.

The facts

5. The Claimant is a citizen of Nigeria. She was born on 20 December 1978. She claims to have entered the United Kingdom in 1993, but there is no record of her entry. That allegation was not accepted by the Immigration Judge who heard her appeal in June 2010. She found that 'taken at best', the Claimant had shown that she had been in the United Kingdom for 'no more than 8 years' (determination, paragraph 21(v)); '8 years at most' (determination, paragraph 39). That would mean that the Claimant has been in the United Kingdom since about June 2002. That determination was not appealed and is binding as between the Claimant and the Defendant.
6. In 2007, the Claimant formed a relationship with Bolu Oni. She does not know what his citizenship is. She has three children: Elisha Oni, who was born on 25 February 2009, Jemima, born on 7 May 2010, and Zachariah, born on 26 October 2011. She is no longer in contact with Bolu Oni.
7. On 6 April 2010 she claimed asylum. The Defendant refused that claim on 5 May 2010. On 12 May 2010, the Defendant served on the Claimant notice of an immigration decision (to remove an illegal entrant under section 10 of the 1999 Act). That notice also notified the Claimant that she had an in-country right of appeal. It said that a notice of appeal had been served with it. The notice also said that the Claimant did not have to leave the United Kingdom while the appeal was in progress.
8. The Claimant exercised that right of appeal. In the determination to which I have referred, the Immigration Judge dismissed the appeal. She considered and rejected the Claimant's assertion that she had been in the United Kingdom since 1993. The Claimant had relied, in part, on material from Carol Babalola to support her claim that she had been in the United Kingdom since 1993.
9. The Immigration Judge said that the Claimant had only brought with her two documents to support this assertion. She had been advised in her asylum interview to bring a signed and dated letter from Carol Babalola. In the event she had brought an unsigned typed letter and a business card. Carol Babalola did not attend the hearing or give evidence. The Immigration Judge said that she would have expected someone so apparently close to the Claimant to have attended; and given the lack of attendance and the nature of the letter, she could give no weight to it. The second document was a letter from a Pastor Ayeni. He did not attend the hearing, either, and the Immigration Judge thought the letter was inconsistent with the case being made by the Claimant.
10. As well as considering the Claimant's claims under the Refugee Convention and under article 3 of the European Convention on Human Rights ('the ECHR'), the Immigration Judge considered the Claimant's rights protected by article 8 of the ECHR. Although only one of the Claimant's children was an appellant, the Claimant by that stage had two children. The Immigration Judge found that the children's father played 'no part whatsoever' in their lives. The Claimant had spent her formative years in Nigeria, she would be very familiar with its traditions and customs, and her children were young enough to adapt. The Claimant would be returning with the benefit of her education and work experience as a mature adult; 'if she could adapt and survive in a foreign land, she [could] certainly do the same as an experienced adult in her homeland.' She found that the Claimant's two children were 'of an age where they can establish their lives in Nigeria with their mother'.
11. The Claimant entered the Defendant's Family Returns Process ('FRP') on 14 August 2012. On 16 August 2012, she made further submissions on her refused asylum claim. Those submissions included a manuscript letter apparently signed by Carol Babalola. Carol Babalola gave no dates in that letter, but said that she had known the Claimant for 17 years. There was a Family Returns Conference ('FRC') with a Family Engagement Manager ('FEM') on 21 August 2012.
12. On 12 September 2012, the Defendant decided that the further representations did not amount to a 'fresh claim' for the purposes of paragraph 353 of the Immigration Rules HC 395 as amended ('the Rules'). In that decision the Defendant considered the letter from Carol Babalola. She referred to the reasoning of the Immigration Judge, which I have described. She said that there was no explanation for the Claimant's failure to provide a signed and dated statement at the hearing, or for Carol Babalola's failure to attend the hearing. 'It must also be questioned why this letter has come forward now'.
13. The Defendant expressly considered the Claimant's family life as a parent, and, under a separate heading, section 55 of the 2009 Act. The Claimant and her children did not meet the requirements of the relevant provisions of the Rules and 'it [was] considered that it would be in your children's best interests to return with you to your country of origin where you can enjoy family life as a complete unit'.
14. That decision was not challenged at the time, and, in my judgment, it is far too late for the Claimant to challenge it now, or to attack its reasoning. The Family Returns Referral report dated 6 January 2015 records that this decision was accompanied by notification of an in-country right of appeal, which the Claimant did not exercise; but that is not apparent from the decision letter or accompanying reasons.
15. On 18 September 2012, the Claimant's case was referred to the appropriate authority on the basis that she was a potential victim of trafficking. On 23 October 2012, it was decided that the Claimant was not a victim of trafficking. She re-entered the FRP on 24 January 2014. There was a second FRC with a FEM on 30 January 2014. On 13 February 2014, there was family departure meeting ('FDP'). The Claimant was given documents to check herself in for a flight on 10 March 2014. She and her children failed to report for that flight. Her accommodation was visited on 14 March 2014, with view to arresting her, but she had absconded. She and her family were known to be homeless in April and May of 2014. I say more about the Claimant's account of what happened after she absconded in paragraph 17, below. The local social services department was involved, and in due course she was given accommodation by the Defendant in Stoke upon Trent.
16. On 27 May 2014 the Claimant made an application for leave to remain as a stateless person. That application was not determined until after the decisions which are challenged in this claim, but it is common ground that the fact that it had not been determined was not a bar to removal. It is also common ground that it was a hopeless application as, on any view, the Claimant was not stateless.
17. On 29 October 2014 there was a case management meeting with Jen Shaw at the Claimant's home address. On 1 December 2014, there was a third FRC with a FEM, and, on 30 December 2014, a second case management meeting with a FEM. On 6 January 2015, the Family Returns Panel ('FRP') decided that the family should be removed to Nigeria. The FRP produced a thorough and careful report. One conclusion was that the Claimant should not be given the opportunity to check in herself again, as she had absconded when given that opportunity before, had then been living on the streets with her children for three months, and, on her own account, had supported herself and her children by prostitution (report, page 25). Miss Jones, rightly in my judgment, did not challenge that conclusion. It is apparent from that report that the Claimant's situation had been explained to her, with some care and sensitivity, on more than one occasion; so removal would have come as no surprise to her.
18. At 17.57 on Wednesday 14 January 2015 immigration officers arrested the Claimant and her children. At 18.06 she was served with directions for her removal to Nigeria on Saturday 17 January 2015 on a flight at 22.35. They were escorted to Cedars pre-departure accommodation. The Claimant and her children arrived at Cedars at 00.20 on 15 January 2015.
19. At 13.58 on 15 January 2015, an official sent an email to a Minister of State in the Home Office. It attached an amended submission for an extension of stay in Cedars for the Claimant and her children. It said, 'Whilst the family was arrested at 6pm on Wednesday 14 January, the original notice period provided was not calculated correctly, for which we apologise. Removal directions have therefore been reset for 22.35 on 19 January 2015 to comply with the requirements of Chapter 60 of the Enforcement Instructions and Guidance. The family will exceed 72 hours in Cedars at 00.20 on Sunday 18 January and advance Ministerial authority for an extension of stay is therefore required to enable the family's return.'
20. The submission said that the request 'is being made on an exceptional basis because it is now known that the family's stay…will exceed 72 hours prior to return' (my emphasis). In order to allow sufficient notice in accordance with Chapter 60 of the Enforcement Instructions and Guidance ('EIG'), the submission said, the family could not be returned before 10.00 on Monday 19 January. The family would therefore return on a flight at 22.35 on 19 January. The family would have been in Cedars for 72 hours by 00.20 on Sunday 19 January, so authority for an extension was needed 'to facilitate return'.
21. The submission continued that if removal did not go ahead as planned, the family would need to return to Cedars until further removal directions could be set. The ability to set removal directions depended on whether flights and escorts were available. The family would not spend more than seven calendar days in Cedars during this stay.
22. The submission explained that 'Due to an incorrect calculation of due notice of removal, the removal will now take place on 19 January. Your authority is required to ensure their stay does not exceed the maximum allowed without Ministerial approval.' The recommendation was that a stay of up to a total of seven days be approved. If the planned further removal directions failed, and it was not possible to re-arrange removal during the seven-day period, the family would be returned to their previous accommodation. The submission ended, on page 5, with a 'Summary of Return Plan'.
23. At 13.21 on 16 January, the Minister's Assistant Private Secretary emailed the Home Office official to say that the Minister was 'content' to authorise the extension of stay. Given the terms of the submission, what the Minister authorised was a stay of a total of seven days in Cedars.
24. The claim was lodged on 19 January 2015. The Claimant and her children were released at 19.29 on 19 January 2015.

The legal framework

Appeals

25. Before its amendment by the Immigration Act 2014 ('the 2014 Act'), section 82 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') conferred a right of appeal against various 'immigration decisions' (as defined in section 82(2)). The seven potential grounds of appeal were set out in section 84(1). A decision that a person was to be removed from the United Kingdom by way of directions under section 10 of the 1999 Act was an immigration decision (see section 82(2)(g)), but the setting of removal directions was not. The effect of section 92 of the 2002 Act was that a person could not appeal against some immigration decisions while he was still in the United Kingdom, unless he had made 'an asylum claim or a human rights claim while in the United Kingdom' (section 92(4)(a)). A section 82(2)(g) decision was one of those decisions. Section 94 gave the Secretary of State a power to certify an asylum or human rights claim as 'clearly unfounded', with the consequence that the right of appeal could only be exercised out of country.
26. As amended by the 2014 Act, section 82(1) now confers a right of appeal on a person where the Secretary of State has decided to refuse a protection claim or a human rights claim which he has made, or where the Secretary of State has decided to revoke his protection status. 'Protection claim' is defined in section 82(2)(a) and section 82(2)(b) explains what it means to refuse a protection claim. The grounds of appeal on which an appeal may be brought are set out in section 84. There are now fewer such grounds. Section 92 is now headed 'Place from which an appeal may be brought or continued'. A protection claim appeal and a human rights claim appeal must be brought from inside the United Kingdom unless they have been certified (section 92(2) and (3)), or in the case of the latter, the asylum seeker is to be removed to safe third country, or has made a human rights claim while outside the United Kingdom. Section 94 gives the Secretary of State a power to certify claims as clearly unfounded.
27. Paragraph 353 of the Rules applies when an asylum or human rights claim has been refused or withdrawn and any appeal is no longer pending. It obliges the Secretary of State to consider any further submissions, and, if she rejects them, to decide whether or not they are a 'fresh claim'. Submissions will amount to such claim if they are 'significantly different'; that is, if they have not been considered before and, taken with the material which has been considered before, create a 'realistic prospect of success'. An applicant who has made further submissions will not be removed until the Secretary of State has considered the submissions.
28. In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348 the House of Lords held that if further submissions are made, the Secretary of State must consider them first under paragraph 353, rather than certifying them under section 94.
29. BA (Nigeria) v Secretary of State for the Home Department concerned refusals by the Secretary of State to revoke deportation orders. Those refusals responded to repetitious human rights claims. Blake J considered at first instance [2008] EWHC 1140 (Admin); [2008] 4 All ER 798 an argument that section 94 should be read literally so as confer an in-country right of appeal on any person who had made an historic asylum claim. He held (at paragraph 43) that section 94 should not be read literally, and that it implicitly required that there should be a nexus, or link, between the human rights submissions and the decision which responded to them. The appellants appealed against this aspect of his decision. Permission to appeal was refused on the papers, and they did not renew their application on that point ([2009] EWCA Civ 119; [2009] QB 686 paragraph 10). Miss Jones accepts that, for an in-country right of appeal to be conferred, there must be a link between the submissions and the immigration decision which responds to them.
30. The House of Lords [2009] UKSC 7; [2010] 1 AC 444 held that even if human rights or asylum submissions repeated claims which had already been made, they generated an in-country right of appeal unless the Secretary of State certified them under section 94 of 96 of the 2002 Act. She could not deprive applicants of that right by deciding that the claims were not fresh claims pursuant to paragraph 353 of the Rules. In ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 296; [2011] QB 722, the Court of Appeal held, in effect, in the light of the fact that the House of Lords in BA (Nigeria) had not disapproved or overruled its (then very) recent decision in ZT (Kosovo) that the reasoning in BA (Nigeria) was to be confined to cases in which an immigration decision (as defined) was a response to further asylum or human rights submissions. In Waqar [2015] UKUT 00169 (IAC) the Upper Tribunal (Asylum and Immigration Chamber) held that the reasoning in the ZA (Nigeria) applied to the new appeal provisions. Under the new appeal provisions, as under the old, the Secretary of State has the gatekeeping function of deciding whether further submissions amount to a 'claim' or not.

Section 55 of the 2009 Act

31. Section 55(1) of the 2009 Act imposes a duty on the Secretary of State to make arrangements for ensuring that various immigration functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom and any services provided by another person to the Secretary of State pursuant to arrangements under section 55 which are made by the Secretary of State and relate to the discharge of such functions are provided having regard to that need. Any person exercising such functions must have regard to any relevant guidance given by the Secretary of State.
32. In Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013 1 WLR 3690 the Supreme Court considered the effect of section 55 and of article 8 of the ECHR. Mr Zoumbas and his wife had 'an unedifying immigration history'. They both entered the United Kingdom illegally and claimed asylum. Their claims were refused. Mrs Zoumbas and their child were removed, but returned illegally. Mrs Zoumbas claimed asylum again. Her appeal was dismissed. Mr Zoumbas made further representations under paragraph 353 of the Rules. The Secretary of State decided that they were not a 'fresh claim'. Mr Zoumbas applied for judicial review. His application was dismissed. His appeal reached the Supreme Court.
33. Giving the judgment of the Court, Lord Hodge JSC, at paragraph 10, summarised the principles on which the appellant relied.

i) The best interests of the child are an integral part of the assessment of proportionality under article 8.

ii) The best interests of the child must be a primary consideration in that assessment, but not always the only primary consideration; and they are not a paramount consideration.

iii) The best interests of a child can be outweighed by the cumulative effect of other considerations, but no other consideration can be treated as inherently more significant.

iv) Different judges may approach the best interests of a child in different ways. It is important to ask the right questions in an orderly way in order to avoid the risk of undervaluing the best interests of a child when other important interests are in play.

v) It is important to have a clear idea of the child's circumstances and of what is in that child's best interests before asking whether those interests are outweighed by other considerations.

vi) There is no substitute for a careful examination of all the relevant factors when the interests of a child are involved in an article 8 assessment.

vii) A child must not be blamed for matters, such as the conduct of a parent, for which he or she is not responsible.

34. The Secretary of State had decided that although health care and education in the Republic of Congo were not of the same standard as in the United Kingdom, it was in the children's best interests that they stay with their parents and be raised in their own culture. There was no reason to think that this would have a particularly harmful effect on them. The balance of factors favoured removal because of the need to maintain immigration control, because the appellants had built their family life while their status in the United Kingdom was precarious and because of the parents' poor immigration history.
35. Lord Hodge said (paragraph 21) that what mattered was that the best interests of the child were at the forefront of the decision maker's mind. In that case the Secretary of State's reasons had been brief. But there was no reason to think that that consideration was not careful. The Secretary of State did not need to record and deal with all the evidence in the decision letter (paragraph 22). It was not irrational to decide that it was in the children's best interests to go with their parents to the Republic of Congo (paragraph 24).
36. In paragraph 24 Lord Hodge also said 'No doubt it would have been possible to have stated that other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as healthcare and education…. But other things were not equal. They were not British Citizens. They had no right to future education or healthcare in this country. They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred…would have been predominantly in the context of that family unit. Most significantly, the decision maker concluded that they could be removed…in the care of their parents without serious detriment to their well being'. The decision maker was also entitled to start by assuming that the parents would be removed (paragraph 25). See also paragraphs 58-61 of EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 2758 (per Lewison LJ, with whom Jackson LJ agreed).

Detention

37. Section 62(1) of the 2002 Act confers a power on the Secretary of State to detain a person pending a decision whether to give directions for the removal of a person under section 10 of the 1999 Act and pending the removal of that person. Section 62(3) applies to the exercise of this power the provisions of Schedule 2 to the 1971 Act, mutatis mutandis. Section 62(7) provides that a power which is exercisable under section 62 pending a decision of a particular kind by the Secretary of State is exercisable when the Secretary of State has reasonable grounds to suspect she make a decision of that kind.

The relevant policies

38. There are two relevant policies. The first is Chapter 60 of EIG. Paragraph 2.4.2.2 provides that the standard notice periods set out in paragraph 2.4.1 apply in the case of families who are subject, as the Claimant was, to 'ensured return'. The relevant standard notice periods in paragraph 2.4.1 are, in effect, 72 hours where removal directions are set on a weekday for removal on a weekday. However if, as here, removal directions are set on weekday for removal at a weekend, the period is longer. Where removal is set for a time after 10 am on a Saturday, the table requires the directions to be served by 10am on a Wednesday. In this case, therefore, the notice which was given by serving directions at 18.06 on a Wednesday for removal on a flight the following Saturday evening, did not comply with the relevant provisions of Chapter 60.
39. The second relevant policy is Chapter 45 of EIG. Section (b) is entitled 'Family returns process operational guidance.' This guidance deals with assisted return, required return and ensured return. Section 5 deals with return via pre-departure accommodation. This is for families who have not co-operated, or for whom other options are not considered suitable. It must only be considered as a last resort.
40. Paragraph 5.1 provides that an immigration officer must serve removal directions on the family on their arrest on the day they are removed to pre-departure accommodation ('PDA'). 'Families can only be admitted to Cedars when removal directions have been set…' The guidance continues, 'Residence at Cedars should be as time limited as possible and will not normally exceed 72 hours. However this can be extended up to a maximum of seven days with ministerial authorisation, sought by the RC family returns team. If a family reaches 72 hours in Cedars and ministerial authority is not in place, Immigration Enforcement staff at Cedars will serve release paperwork…There is no provision to hold a family for longer than seven days in any circumstances' (all bold type as in the original).
41. Paragraph 5.2 is headed 'Ministerial authorisation'. It provides

'This should be sought

• Where timing and availability of flights and requirements for removal notice periods mean the family needs to be accommodated for longer than 72 hours. This should also be detailed in the return plan for the IFRP. Ministerial authority must be in place before the family enters Cedars.

• Where a first attempt at return fails or it is believed the scheduled return will fail and a further set of removal directions can be secured without the family exceeding a total of 7 days in Cedars. This option cannot be utilised unless it was included as a contingency in the return plan. Advice received from the IFRP must be included in the request for ministerial authorisation, which must be obtained within 18 hours of a family's failed return or within 72 hours of the family originally entering Cedars, whichever time period is greatest. Detention operations duty director authority must be obtained for a family to re-enter Cedars under these circumstances, pending ministerial authority.' (all bold type as in the original).

The relevance of her published policies to the exercise by the Secretary of State of powers of detention

42. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1AC 245 and in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299 the Supreme Court considered the constraints on the exercise of powers to detain foreign national prisoners pending their deportation. Similar constraints self-evidently apply to the power conferred on the Secretary of State by section 62 of the 2002 Act. The appeal in Kambadzi was heard first, but the Supreme Court delayed its judgment in Kambadzi until it had decided Lumba.
43. The breach of policy in Lumba was a failure to apply the presumption in favour of release stated in the published policy, and instead to apply a secret unpublished presumption in favour of detention. In Kambadzi the relevant policy provided for reviews of detention at regular intervals. The Supreme Court held that a failure to review detention in accordance with the timetable specified in the policy made the detention unlawful.
44. The Supreme Court held in both cases that the Secretary of State must follow her published policy governing detention, unless there is good reason not to. A breach of a relevant policy which bears on and is relevant to the decision to detain will make that detention unlawful, and the Secretary of State will therefore commit the tort of wrongful imprisonment (see Kambadzi, paragraphs 36-42, 51-52). However, an applicant will only be entitled to nominal damages if, acting lawfully, the Secretary of State would have detained him anyway (Lumba).
45. However, in Kambadzi Lord Hope indicated that in some cases, if the breach of policy undermined the authority to detain, a claimant might be entitled to more than nominal damages (at paragraphs 55-57). There is no strong support for this approach in the speeches of the other members of the majority (Baroness Hale at paragraph 77, and Lord Kerr, at paragraph 89). The Supreme Court restored Munby J's order for the assessment of damages if not agreed.

The Hardial Singh principles

46. In Lumba Lord Dyson SCJ (as he then was) approved the Hardial Singh principles. The source of those principles is R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704. The four principles were summarised by Lord Dyson in paragraph 22.

i) The Secretary of State must intend to deport the person and can only use the power for that purpose.

ii) The deportee may only be detained for a period which is reasonable in all the circumstances.

iii) If before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to deport within a reasonable period, he should no longer detain the person.

iv) The Secretary of State must act with reasonable diligence to deport the person.

Discussion

A. Was the decision to remove unlawful?

(1) Did the Claimant have an in-country right of appeal?

47. The authorities seem to me to be clear. There are two main points. First, as Miss Brown accepted, the reasoning in BA (Nigeria) only applies if there is a nexus between the representations and the immigration decision which responds to them. There is no such nexus here. The only relevant representations were those made in 2012. They were rejected in 2012. There is no link between those representations and the decision to remove in 2015. That decision was not in any way a response to those representations.
48. Second, the Secretary of State decided in 2012 that those representations were not 'a fresh claim'. That decision was not challenged at the time. This means that the relevant primary decision maker (for this purpose, the Secretary of State, and not the Court) has decided that the 2012 representations were not asylum or human rights claims for the purposes of the statutory appeal provisions. In the absence of a successful challenge to that decision, I cannot go behind it.
49. It follows that when the Defendant made the removal decision, there was no outstanding right of appeal which could have been an obstacle to removal.

(2) Did the Defendant breach section 55 of the 2009 Act?

50. One implicit premise of the argument that the decision to remove was unlawful is that the Defendant was obliged, before making that decision, to consider position of the Claimant and her children again, even though there was no relevant outstanding application. I reject that submission. If there are no outstanding applications or appeals the Secretary of State is, in my judgment, generally free to decide to remove a person who has no right to be in the United Kingdom. Once that decision is made, the section 55 duty may well affect the way in which families are removed from the United Kingdom. No doubt with this in mind, the Secretary of State has set up an elaborate process for removing children with their parents, and has adopted a very strict policy about detaining them. It has, rightly, not been suggested that those general arrangements are a breach of the section 55 duty.
51. That disposes of the argument that the decision to remove was a breach of section 55 of the 2009 Act. In case that is wrong, I should consider whether the position of the Claimant and her children meant that it was a breach of the duty imposed by section 55 for the children to be removed with her to Nigeria. I do not consider that it was. The Defendant was entitled to start from the premise that the Claimant would be removed, and she was also entitled to conclude (as she had in the 2012 decision, assisted by the views of the Immigration Judge in 2010) that it would be in the children's best interests to stay with their mother and be removed with her to Nigeria.

(3) Was the Claimant entitled to indefinite leave to remain?

52. In 2010 the Immigration Judge rejected the Claimant's claim that she had lived in the United Kingdom since 1993. On her findings, the Claimant had, 'at best' been in the United Kingdom since 2002. That finding is binding on the Claimant. It means that she does not satisfy the long residence requirement in the Rules. The Secretary of State was not impressed by the fresh evidence on this point on which the Claimant relied in 2012. The Secretary of State's assessment of this evidence was not challenged at the time. I do not consider that the Claimant should be permitted to mount a collateral attack on that decision in these proceedings.

B. Was the Claimant wrongfully imprisoned?

53. There is no doubt that the Defendant had a statutory power to detain the Claimant and her children. Ms Jones, rightly, accepted that the Defendant was entitled, given the history, to seek to exercise that power in this case. If the detention was a breach of the Defendant's policy, there is also no doubt that it was a breach which bore on, and was relevant to the decision to detain. So there are five questions here.

i) What does the Defendant's relevant policy mean?

ii) Did the Defendant breach her policy?

iii) If so, did she have good reason for doing so?

iv) Was the Claimant's detention unlawful?

v) If so, is this the type of breach that must sound in damages, even if the Claimant's detention was justified and the Defendant would have detained her in any event?

(1) What does section 5 of Chapter 45 mean?

54. Two points are relevant to the construction of Section 5 of Chapter 45. First, the transparent and deliberate purpose of those provisions is severely to constrain the otherwise wide power conferred by section 62 in cases involving families with children. Three features make this clear.

i) Removal directions must have been set before a family is detained, so removal must be really imminent.

ii) The period of detention 'will not normally exceed 72 hours'.

iii) 'There is no provision to hold a family for longer than seven days in any circumstances'.

In the light of the reasoning of the Supreme Court in Kambadzi, I consider that it is clear that the Secretary of State has very significantly fettered what would otherwise be a wide power to detain families with children. There is no doubt, for example, that if the Secretary of State detained such a family for longer than seven days, she would act unlawfully, unless she had good reason for departing from the policy on the facts of a particular case.

55. Second, it is clear, since both Chapter 45 and Chapter 60 of EIG refer to a period of 72 hours (a maximum in the former and a minimum in the latter), and because Chapter 45 refers to notice of removal directions, that the two chapters are intended to be operated together. From a practical perspective, those who are making decisions to detain families under Chapter 45 must have the notice periods stipulated in Chapter 60 well in mind. It is entirely foreseeable that a mistake in calculating, pursuant to Chapter 60, the notice of removal directions which must be given to a family will have consequences for the length of their detention.
56. The dispute in this case creates two issues about the meaning of the relevant provisions.

i) Does the phrase 'removal directions' in paragraph 5.1 mean 'removal directions the service of which complies with Chapter 60'?

ii) Does 'However this can be extended up to a maximum of seven days with ministerial authorisation, sought by the RC family returns team' (paragraph 5.1) mean that the Minister has a general power to extend the minimum period of 72 hours, or are the two bullet points under the heading 'Ministerial authorisation' in paragraph 5.2 an exhaustive statement of the circumstances in which a Minister can authorise detention for longer than 72 hours?

57. The first issue is not difficult. Chapter 60 and section 5 of Chapter 45 are designed to be read and operated together. As a result, I have no hesitation in concluding that the drafter of paragraph 5.1 of Chapter 60 meant 'removal directions the service of which complies with Chapter 60'.
58. The second issue is more difficult. I can see the attraction of the argument that the middle sentence of paragraph 5.1 is intended to reserve to the Minister a general power to authorise detention for periods which exceed 72 hours but do not exceed seven days. However, on balance, I consider that the better view is that, under the terms of the policy, the circumstances in which the Minister can authorise detention for longer than 72 hours are exhaustively set out in paragraph 5.2. For the policy to reserve to the Minister a power routinely to authorise detention for longer than 72 hours would undermine what I have held to be one of its purposes. I acknowledge that this reasoning is to some extent circular, as I have deduced the purposes of the policy from its language. But I consider that the features I refer to in paragraphs 54(i) and (iii), above, support my view of its purpose.
59. This construction of the policy does not, of course, mean that the Minister can only ever lawfully authorise detention for longer than 72 hours if the criteria in the two bullet points in paragraph 5.2 are met. The Supreme Court has made it clear that the Secretary of State can depart from a policy governing her power to detain for good reason. But what this construction does ensure is that the Minister is not encouraged routinely to authorise detention exceeding 72 hours in those cases where those criteria are not met. Rather, if this construction is right, officials will always need to consider, before asking for ministerial authority to exceed detention for 72 hours, whether they have a good reason for asking for it, and to explain to the Minister in their submission what that good reason is.

(2) Did the Defendant breach her policy?

60. The removal directions were served late on Wednesday afternoon for a flight on Saturday evening. They were served too late to enable the length of notice required by Chapter 60 for such a flight. A foundation for detention under section 5, that is the prior setting of removal directions complying with Chapter 60, was missing. It follows that the Defendant breached the terms of her policy by serving removal directions on the Claimant which did not comply with Chapter 60, and then detaining her.
61. In my judgment, the policy was also breached because the Minister purported to extend the period of detention when the criteria in paragraph 5.2 were not met. The point of paragraph 5.2 is to restrict the occasions when a Minister can authorise detention for longer than 72 hours to those situations where, before the family is detained, it is known, or suspected, that it will be necessary to detain the family for longer than 72 hours. The policy caters for planned extensions, but does not sanction ad hoc extensions once a family has been detained at Cedars (unless, of course, there is a good reason for departing from the policy, and that is drawn to the Minister's attention).

(3) Did the Defendant have a good reason for breaching, or for departing from, her policy?

62. The breach I am considering here is the absence of advance ministerial authority for detention for longer than 72 hours. Stripped to its essentials, the reason why this aspect of the policy was breached was because the Defendant had breached a different part of the policy (that is the requirement that removal directions, the service of which complied with Chapter 60, had been set before the Claimant was detained). This is not, in my judgment, a good reason for breaching her policy about the circumstances in which families can be detained for longer than the normal maximum period of 72 hours.

(4) Was the Claimant's detention unlawful?

63. The Claimant submits, first, that her detention was unlawful because she had an in-country right of appeal. I reject that submission, for the reasons given above. Her next submission is that the detention was unlawful, because it was a breach of the policy. I accept that general submission, for the reasons given above.
64. In my judgment, the failure to set and serve removal directions so as to comply with the notice periods in Chapter 60 makes the detention of the Claimant and her children unlawful from the outset. That detention did not become lawful, either retrospectively, or prospectively, when the ministerial authority was obtained. The ministerial authority which was given was not lawfully sought or given, and therefore it had no effect.

(5) Is the Claimant entitled to more than nominal damages?

65. There are four issues.

i) What is the correct approach to this question at common law?

ii) If that approach is applied, is the Claimant entitled to more than nominal damages?

iii) Is the Claimant entitled to aggravated damages?

iv) Is the Claimant entitled to damages for breach of article 5 of the ECHR?

(i) The correct approach at common law

66. Lord Hope in Kambadzi appears to have considered that there might be cases in which a breach of policy could give rise to an entitlement to more than nominal damages, even if the detention did not at any stage breach the Hardial Singh principles, and so, the Secretary of State could, and would, have detained had he complied with his policy. This suggestion is surprising, since the breaches in that case were procedural, and did not undermine (contrast Lumba), the initial authority to detain.
67. Lumba was a case in which there was statutory authority to detain the FNP claimants. The public law error which made their detention unlawful was that the criteria of the published policy were not applied to their initial detention, or in decisions to maintain it, but rather, criteria in a secret policy. I consider that in this case I should follow the approach in Lumba.

(ii) If the correct approach is applied, is the Claimant entitled to more than nominal damages?

68. The Claimant accepts that the question then is whether, on balance of probabilities, she and her children would have been detained if the policy had been applied lawfully. The Claimant and her children had no right to be in the United Kingdom. The Defendant had made a decision, which was not challenged at the time, that it was in the children's best interests to be removed with her to Nigeria. The Claimant had been given an opportunity to leave by checking herself onto a flight independently. She did not take it, absconded, and put her children at risk by living on the streets with them. The Defendant's decision to remove her was lawful.
69. It is clear to me that had the Secretary of State applied the policy correctly, by setting removal directions so as to comply with Chapter 60, she would have detained the Claimant in any event, and could have done so lawfully. It would seem to follow that the Claimant is entitled to nominal damages only at common law. However, Miss Jones submits that if the Defendant had applied her policy properly, she would have arranged to put the Claimant on a flight which left on a day of the week which would have required only 72 hours' notice to be given. The policy stresses that the period of detention should not normally exceed 72 hours. She submits that there is no evidence that there was a shortage of flights or spaces at the time of the Claimant's removal, and I agree. I therefore hold that the Claimant is entitled to be compensated for the hours over 72 hours during which she was detained with her children, before they were released.
70. Mr Westaway submits, first, that the Claimant would have been detained in any event, and that this is a case to which the reasoning in Lumba applies. He also relies on section 31(2A) of the Senior Courts Act 1981. He submits that had the Defendant not breached her policy, it is 'highly likely that the outcome for the [Claimant] not have been substantially different', as, he submits, that it is highly likely that the Claimant would have been detained for longer than 72 hours in any event. I am satisfied on the evidence that the Claimant would have been detained for 72 hours, but not that she would have been detained for more than 72 hours, for the reasons I have given. I do not consider, therefore, that section 31(2A) helps the Secretary of State on this argument.

(iii) Is the Claimant entitled to aggravated damages?

71. I reject the Claimant's submission that she is entitled to aggravated damages for the circumstances of the detention, or for its effects, or because the Defendant did not swiftly provide evidence of the ministerial authority. The criteria described by Lord Woolf in Thompson v Commissioner of the Police for the Metropolis [1997] EWCA Civ 3083 are not met, in my judgment. This was a standard exercise by the Defendant of her power to detain an adult with her children. Its salient flaw was the failure to follow Chapter 60 in setting the removal directions. There was nothing high-handed, insulting, malicious or oppressive about the arrest or detention of the Claimant and her children. It was an all-too-probable consequence of her earlier decision to abscond when she was given an opportunity to leave the United Kingdom of her own accord.

(iv) Is the Claimant entitled to damages for breach of article 5 of the ECHR?

72. Article 5.1 provides that everyone has the right to liberty and security. 'No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law'. Sub-paragraph (f) refers to 'the lawful arrest or detention of a person…. against whom action is being taken with a view to deportation or extradition'. Article 5.4 provides that 'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful'. Article 5.5 provides that 'Everyone who has been the victim of arrest or detention in contravention of this Article shall have an enforceable right to compensation.'
73. The Claimant relies on an extensive citation from Detention under the Immigration Acts: Law and Practice 2015 OUP by Denholm and Dunlop. In this passage its authors consider whether, in cases where a claimant is only entitled at common law to nominal damages for his detention he should be awarded damages under section 8 of the Human Rights Act 1998, or by the European Court of Human Rights ('the ECtHR'). The authors refer to various decisions of the ECtHR, and to a pending case, VM v United Kingdom. They suggest that the ECtHR has an almost consistent practice of awarding compensation for breaches of article 5.1 in the context of immigration detention. That practice is largely unexplained, but in some cases rests on the distress which is presumed to be caused by detention. The only case in their list which comes from the United Kingdom (Abdi v United Kingdom Application No 2777008, 9 April 2013) is said to 'hint' at a different approach. I have read the decision, and do not consider that it clearly shows what approach the ECtHR would take on the facts of this case, where the period of detention is much shorter than the period of detention which was at issue in Abdi.
74. Mr Westaway draws my attention to the agreement of both sides in Kambadzi, reported at paragraph 59 of Lord Hope's judgment, that, in that case, the article 5 claim added nothing to the common law claim, if that succeeded. That is of limited help, for two reasons. First, Lord Hope records the agreement of the parties on the facts of that case, and no more; and second, this is a case where, in my judgment, the common law claim succeeds, but only to the extent that I have decided that the Claimant is entitled to damages in respect of part, but not the whole, of the period for which she was detained. Nonetheless, I am not persuaded by Ms Jones's reference to the decisions of the ECtHR that this is a case where the ECtHR would award a substantial amount of damages, or one which would exceed the damages to which I have found she is entitled.

Conclusion

75. The Claimant is entitled to a declaration that the entire period of her detention was unlawful. She is entitled to no more than nominal damages, however, for the first 72 hours of that detention, but she is entitled to compensatory damages for the extent to which her detention exceeded 72 hours. I will give the parties an opportunity to make written submissions about this, but my provisional view is that any assessment of damages should be adjourned for a reasonable period in order to enable the parties to try and agree the amount of those damages, and that if such an assessment is necessary, it should be transferred to the Queen's Bench Division. The Claimant is not entitled to aggravated damages, or to damages under article 5 of the ECHR which exceed those to which she is entitled at common law.