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
		31 October 2017

HHJ Walden-Smith :

1. By an order of Helen Mountfield QC sitting as a deputy High Court Judge on 6 June 2017, permission was given to the Claimants to bring these judicial review proceedings against the Secretary of State for the Home Department ("SSHD").
2. An order anonymising the identity of the three Claimants, to be known respectively as AT, FF and BT, was granted by McGowan J on 9 February 2017. The order of anonymity continues and I will deal with the issue of anonymity at the end of this judgment.

The History of the Proceedings

3. A letter before claim was sent by the Claimants' representatives, the Public Law Project, on 29 January 2017 setting out the basis of the proposed claim for judicial review. That letter requested a reply by 4pm on 2 February 2017. There was no response to that letter and on 9 February 2017 a protective claim form was issued in order to comply with the time limits of CPR 54.
4. The claim was issued together with an application for a stay and, at the time of making the order not allowing the identity of the Claimants to be disclosed, McGowan J refused the application for a stay stating that legal aid had been refused on grounds other than financial eligibility and that it "is not right to delay the resolution of the issues in this case for some indefinite period."
5. Legal aid was obtained by AT. A consent order was entered into and approved on 14 March 2017 whereby it was agreed that the Claimants be given until 17 March 2017 to file and serve grounds of claim together with any evidence in support and that the SSHD would be given until 21 days thereafter (7 April 2017) to file an acknowledgment of service.
6. No acknowledgment of service was, or has ever, been served by the SSHD and on 6 June 2017 (date stamped 7 June 2017) Helen Mountfield QC gave permission to AT, FF and BT to judicially review the decision of the SSHD on the basis of the claim form alone, there having been no acknowledgment of service. Standard directions were made so that the SSHD had 35 days (that is by 12 July 2017) to file and serve detailed grounds of defence.
7. The SSHD made an application for an extension of time for the filing and service of detailed grounds of defence. This was objected to by the Claimants but Master Gidden gave the SSHD until 18 August 2017 on the basis that the substantive hearing of the case was not until 4 and 5 October 2017 (therefore some 9 weeks away from the time he was making the order). Master Gidden held that the Claimants could not really know the prejudice that they might suffer by that late service until they had seen the position being taken by the SSHD. In the event, the difficulty for the Claimants was that they did not have the opportunity to see the position of the SSHD until hours before the substantive hearing.
8. The Claimants applied for permission to adduce further witness statements from AT dated 9 September 2017 and FF dated 11 September 2017 and a report from Diane Jackson, an independent social worker, dated 12 September 2017. The two statements and the report dealt with the impact of AT's removal, in particular with respect to BT, his very young son. On 20 September 2017, Master Gidden refused permission to rely on this additional evidence as it was not in accordance with the overriding objective in circumstances where the SSHD had taken no part in the proceedings save for applying for additional time to serve the detailed grounds of defence by 18 August 2017 and the Claimants had already provided a large bundle of documents. For reasons set out below, I have now given permission to the Claimants to rely upon this further evidence.
9. It was not until 15.19 on 3 October 2017, the afternoon before the substantive hearing was due to commence, that the SSHD provided detailed grounds of defence by email. The SSHD had failed to comply with the civil procedure rules and with the orders of the court. The SSHD's application for relief from sanction was issued and sealed by the court only on the morning of the substantive hearing.
10. CPR 54.8 provides that a party who wishes to take part in the judicial review proceedings must file an acknowledgment of service within 21 days of service of the claim form. CPR 54.13 provides that a person who wishes to contest the claim must file and serve detailed grounds for contesting the claim within 35 days of service of the order giving permission. The SSHD was not only a long way out of time in accordance with the rules but was a long way out of the additional time granted by Master Gidden. While the court appreciates the constraints on resources, the failures in this case were extreme and unacceptable.
11. For reasons I gave in a separate judgment I refused the SSHD relief from sanction.
12. The SSHD had placed the Claimants in an invidious position. The Claimants either had to proceed with the substantive hearing without the opportunity to respond to what the SSHD had raised hours before a hearing that had been known about for months, or seek an adjournment which would prolong what the Claimants allege to be an unlawful interference with Article 8 ECHR rights. The SSHD did not seek to suggest that the delay was anything other than serious and substantial and did not contend that there were any good reasons for that delay. Her argument was simply that "matters had slipped" and it would be for the court's benefit to hear both sides as the Secretary of State was in the best position to explain the documents that had just been disclosed by the SSHD (that disclosure having been given long after the date it was due). It is of course a given that the court will benefit, in an adversarial system, from hearing from both sides, but that is not enough to provide a basis for granting relief (see: Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795; Denton v TH White Ltd [2014] 1 WLR 3926).
13. Counsel for the SSHD also submitted that it would be in the public interest for the Secretary of State to be allowed to mount a defence. That argument ignores the fact that it was the Secretary of State who, by her inaction, failed to take the opportunity to engage in the judicial review process (despite a number of extensions to enable her to do so). If an order is made for best endeavours to be undertaken by the Secretary of State to return AT that only gives AT an opportunity to have his appeal against the refusal of his fresh Article 8 ECHR representations heard before an Immigration Tribunal judge. The Secretary of State is not being prevented from making submissions on an appeal to the Tribunal in due course.
14. The Court of Appeal made it clear in R (Hysaj) v SSHD [2015] 1 WLR 2472 that there were no special rules for public authorities in public law cases, although the fact that there are issues which are important to the public at large is a factor that the court can properly take into account when it comes to stage three of the decision-making process to evaluate all the circumstances of the case. Moore-Bick LJ put it as follows:

"I am well aware that the resources of many public authorities are stretched to breaking-point, but in my view they have a responsibility to adhere to the rules just as much as any other litigants. In the Mitchell case [2014] 1 WLR 795 the court stated clearly that, in the case of a solicitor, having too much work will rarely be a good reason for failing to comply with the rules and in my view the court should not apply a different standard to public bodies…"

15. In the course of considering the third stage of the Mitchell/Denton test I took into account the additional evidence contained in the further statements of AT and FF and the expert report of an independent social worker, Diane Jackson. On consideration of that evidence it is my judgment that not only do they support the contention that the removal of AT to Gambia is causing a rupture in the family and difficulties for the very young Third Claimant (BT) to bond with his father, such that any adjournment of the application for judicial review would be damaging, but also that the matters contained therein are relevant to the substantive matters before me on this judicial review. I therefore granted permission to the Claimants to be able to rely upon that additional documentation within the substantive hearing.
16. In all the circumstances of this case, I found that there were no good grounds for me to exercise my discretion in favour of allowing the SSHD to take an active part in the proceedings. The substantive judicial review therefore took place in the absence of the SSHD, albeit that a note was being taken. Counsel for the Claimants, Miss Charlotte Kilroy, so far as she was able to do so and in accordance with her duties to the court, dealt with the various points raised by the SSHD in the detailed grounds of defence and late disclosure during the course of her submissions.

The Factual Background

17. AT (the First Claimant) is a Gambian national born on 22 November 1988. He first entered the UK as a tier 4 student with valid entry clearance until 25 February 2011 which was extended until 30 October 2012. His application for leave to remain was refused on 27 December 2012 and he returned to the Gambia. He last arrived in the UK on 5 October 2013 with a valid entry clearance as a Tier 4 (General) student until 29 March 2014. AT did not leave when his leave to enter expired and he therefore became an overstayer.
18. FF (the Second Claimant) is also a Gambian national. She was born in 1992 and was forced to marry her cousin at the age of 12 years. She was subjected to serious sexual and other physical violence by her former husband and other family members. While this is not a matter which has been expressly determined in the context of this case, FF does not accept that she was validly married as"Islam does not permit forced marriages and the Qu'ran is clear that consent from both the man and woman must be given before a marriage can take place. The forced marriage was never made official and registered" (see paragraph 14 of FF's statement 16 March 2017). FF was trafficked into the UK at the age of 18 (in 2010) but managed to escape her trafficker and claimed asylum on the grounds that she feared from her father, the trafficker and her husband.
19. On 10 May 2011 the SSHD accepted that she had been trafficked and that she was in fear for her life from her father, her husband and other family members and gave her Humanitarian Protection in the UK for 5 years on the grounds that she would be in risk of serious harm if she returned to the Gambia. She was not granted asylum as her fears were not by reason of her race, religion, nationality, political opinion or membership of a particular social group. FF now has indefinite leave to remain and it is not contested on the part of SSHD that she could ever realistically return to the Gambia. She put in her statement that she had "acted against my family's wishes and brought shame on them." On the basis of the evidence that has been presented to me, FF is undoubtedly vulnerable by reason of what has happened to her in the past and there is no prospect of her returning to the Gambia.
20. FF and AT met in Peckham, London in approximately March 2014 (approximately the same time as AT's leave to enter was expiring). FF says that she found AT to be kind, loving and caring and that they wanted to get married. Because of their religion, AT and FF would not live together without first being married. They were married by proxy in AT's hometown of Farafenni. The marriage was performed by an Iman on 30 December 2014. AT's father, who has the same name as AT and FF's son, and FF's friend Siaka Tourey, acted as their proxies. The validity of the document registering that proxy marriage is confirmed by a notary public. SSHD v Cudjoe [2016] UKUT 00180 provides authority for a proxy marriage being a valid marriage if it is recognised by the laws of the country in which the proxy marriage took place. In his statement AT says that they no longer rely upon the marriage certificate but that appears to be because the register refers to FF's father being the guardian of the bride whereas, as a result of what had happened to FF, there is no ongoing relationship with her father and he would not have been present at the proxy marriage. I do not read the register as meaning that FF's father was present, it is merely giving his name as being her guardian. This is a matter, however, which will require further exploration. The evidence before me supports the submission that proxy marriages are recognised in Gambia.
21. Once married by virtue of that proxy marriage in December 2014, AT moved to live with FF in her property at 104B Peckham Hill Street from January 2015. FF was working as a part-time cleaner on low wages and was receiving both council tax benefit and housing benefit. Both FF and AT say that they were concerned that if they revealed that AT was living with FF then she could lose her benefit and also lose her accommodation. It is said by them both that it was the fear that they would make their situation worse, and that FF could potentially lose her tenancy, that motivated them both not to reveal their situation and was the reason, it is said, that AT did not inform the Home Office about his relationship with FF and why he said he was living with a friend. AT and FF desperately regret not having told anyone about their relationship, given what has happened, and FF has subsequently learnt that there would not in fact be an issue with her living with AT in the flat.
22. While both AT and FF say that they did not plan to have children at that time, in approximately March 2016 (some 14 months after they were married) FF discovered she was pregnant with the Third Claimant, BT, who was born a few weeks prematurely on 4 October 2016 (he had been due to be born on 20 October 2016). BT, the son of AT and FF, is a British citizen. His first birthday fell on the first day of the hearing of this claim. BT is the Third Claimant and acts through his litigation friend, his mother FF.
23. The witness evidence of both AT and FF support AT having been very engaged with his wife's pregnancy, including staying in the hospital with her when she was hospitalised 32 weeks into the pregnancy and attending various ante-natal appointments with her.
24. AT had applied for asylum on 18 September 2015. By this time he was living with FF in her housing association flat, albeit this was not being revealed by either AT or FF.
25. AT said he was fearful of returning to the Gambia at that time as he had opposed the then President of the Gambia, President Jammeh, and feared for his own safety. He provided information that he had been arrested twice and questioned by the National Intelligence Agents in February 2013, when he had previously returned to the Gambia when his first student visa expired. AT said that it was for that reason that he was unable to return to the Gambia when his student visa came to an end in March 2014. AT set out his reasons for seeking asylum in a statement dated 21 September 2015. He did not mention at that time his marriage to a British citizen or that he was living with her in Housing Association premises.
26. When interviewed about his asylum claim on 9 October 2015 AT said he was single and that he did not have a partner or any other family in the UK and, similarly, FF did not mention the relationship, marriage or her pregnancy when she applied for indefinite leave to remain on 14 April 2016. Both AT and FF state that they were acting under fear that mentioning their relationship and living together would jeopardise FF's position. It was, as they both now recognise, a very big mistake but born out of that fear, combined with AT's confidence that he would be successful in his application to be granted asylum.
27. Asylum was refused to AT on 26 October 2015. He appealed to the First Tier Tribunal where his appeal was rejected. While the FTT Judge found his account to be "generally plausible and that it has a number of aspects of consistency across the various occasions which it has been told" the FTT Judge did find some inconsistencies, for example with respect to precisely where he was when he spoke out against the regime and he further found that he did not "consider there to be a reasonable likelihood that the appellant will be at risk in the Gambia. I do not consider that he has previously been of interest and I do not accept that his limited sur place [?] activities generate a risk in themselves."
28. Permission to appeal was refused by the Upper Tribunal. The decision to refuse permission was promulgated on 3 June 2016. That refusal marked the end of AT's asylum case. Throughout the process of the asylum case and the appeals, AT did not mention his relationship with FF and that they were living together as husband and wife. Further, he failed to mention at any time during that process that FF was pregnant. While the reason given for that failure was the wish not to jeopordise FF's financial and housing support, it is very easy to see why the Home Office have been sceptical about the genuineness of the relationship between AT and FF. FF did not mention her relationship with AT nor that she was pregnant with his child during the course of her application for indefinite leave to remain. FF's application was made on 14 April 2016 and was granted on 28 July 2016 (by which stage she was only a couple of months away from giving birth to BT).
29. AT was sent a notice of immigration decision/notice of removal on 15 September 2016. AT says he received that notice on 19 September 2016 (which is two working days after its posting). The notice informed AT that he was liable to be removed and that if he did not remove himself voluntarily then he would be removed forceably. The notice contained the provision that: "You will not be removed for the first seven calendar days after you receive this notice. Following the end of this seven day period, and for up to three months from the date of this notice, you may be removed without further notice."
30. While AT took steps to obtain an appointment with an immigration solicitor at Lambeth Law Centre, he was unable to see her before being arrested when reporting to an Immigration Office in accordance with the requirements of his temporary release on 26 September 2016.
31. There is a factual dispute between AT and what is recorded in the Decision Letter which says that he had mainly been living with a friend (it is alleged he originally said boyfriend which is denied by AT). AT had by this time told his solicitor of his relationship with FF. I note that the letter refers to AT allegedly saying that he lived with his boyfriend "when detained on 18 October 2016". That date must be wrong as he was detained on 26 September 2016. It is clearly possible that the record of AT referring to a boyfriend was a mis-recording. Certainly, AT says he has no recollection of saying it and has no reason as to why he would.
32. When detained on 26 September 2016, AT was told that he would be removed the following day. That would have just fallen within the stipulated removal window as the notice of removal stated that he could be removed after 7 and within 3 months of the notice. Removal on 27 September 2016 would have been the day after 7 days had passed from the service of the notice on 19 September 2016.
33. AT was asked whether he wished to collect his belongings and he asked to be taken to FF's property at 104B Peckham Hill Street, London SE15. That was the first occasion AT had mentioned his relationship with FF and her pregnancy. Several immigration officers entered the flat with AT and, according to his statement and that of FF, collected his belongings from around the flat, including the bathroom. AT sets out that he had a wardrobe full of clothes and a number of pairs of shoes and the point is made that it would have been obvious to the officers that he was living in that property. It is also important to note that this is not something which could have been constructed by AT or FF. His arrest on 26 September 2017 had been a surprise as it occurred when he was reporting. It was equally a surprise that he was to be removed on 27 September 2017 (he had made an appointment to see his lawyer on 28 September 2017). FF became distressed when she was told that AT was being detained and would be removed and begged them not to take AT away. FF also told the officers that AT was her husband and that she was expecting their child. FF was by this time heavily pregnant. The point is made on behalf of the Claimants that the distress of FF and her pregnancy and the way in which AT was living at her flat must have been obvious to the immigration officers who accompanied AT to 104B Peckham Hill Street. The GCID Case Record Sheet refers to AT having "inadvertently made slip that he mainly stays at his "BOYFRIEND'S" home then he quickly corrected himself and said his "FRIEND's" home but that he needed to stay with [h]is "PARTNER" as she had medical problems." It was recorded in this note that the officers did encounter a female who was heavily pregnant but in another note, a record is made that AT claimed to be in a relationship with a Gambian female who has been granted ILR. "This relationship dates back to January 2015. [AT] claims that his partner is 8 months pregnant. There is no physical evidence of the pregnancy and only one picture of the pair on social media. [AT] has had ample of time (sic.) to submit a relevant application based on his relationship and the pregnancy, which he hasn't done." This second note makes little sense in light of what was recorded in the first and what the immigration officers witnessed. It is possible to infer from this conflict in the notes that there was scepticism on the part of the decision maker and that there was a reluctance to move away from that position of scepticism despite the evidence provided.
34. AT was taken to the immigration removal centre at Brook House, Gatwick late on the evening of 26 September 2016 and on 27 September 2016 he was told he would be put on a flight to Gambia. AT was protesting that he could not go back to the Gambia because his wife was pregnant and was soon due to give birth and he was still fearful of returning. The removal was cancelled. It is alleged in the decision letter that he was disruptive and the GCID Case Record Sheet records that he became disruptive and refused to leave the immigration centre. It is denied by AT that he was disruptive. The record indicates that he was protesting that he should not be removed because of his wife and her pregnancy. Certainly, it appears from the records that a decision was made that any further removal was to be accompanied.
35. AT was unable to meet with his immigration lawyer at the Lambeth Law Centre because he had been detained. Further, because he was not entitled to legal aid, he needed to obtain exceptional funding. It also appears that Lambeth Law Centre were unwilling to assist AT where he had failed previously to inform them about his relationship with FF and her pregnancy.
36. AT and FF instructed solicitors to act on their behalf and a letter was sent on their behalf seeking temporary admission on the basis of the relationship between AT and FF. That was refused by letter dated 5 October 2016. The solicitors failed to act further as monies were owed with respect to their fees. AT's witness statement makes it clear that he was not satisfied with the service provided by those solicitors.
37. BT was born on 4 October 2016 (more than 2 weeks before the due date). BT is a British Citizen by birth, his mother having indefinite leave to remain. AT informed the SSHD that his wife had given birth and asked to see his wife and son. The request was not granted.
38. FF visited AT at Brook House on one occasion prior to his removal. She says she was unable to visit before the birth of BT because she was so heavily pregnant and she had had difficulties during her pregnancy. After the birth of BT she had a very young baby to care for and was turned away once when she did not have a birth certificate. The birth had not been registered at this time and AT completed a parental declaration, witnessed by a detention officer. BT's birth was then registered with FF as mother and AT as father and on that day or the next (25 or 26 October 2016, when BT was three weeks old) AT was visited by FF and BT at Brook House.
39. AT provided information to the Home Office about his marriage to FF and the birth of their son BT. He also provided photographs of him together with FF as a couple. The evidence that has been presented to me indicates that the Immigration Officers, who accompanied AT to FF's flat, would have witnessed the distress of FF, that she was heavily pregnant, and that AT had a substantial amount of belongings in that flat.
40. AT was at the time without legal representation and he had difficulties in being able to access information himself while in detention.
41. AT was successful in obtaining an appointment to see a solicitor from Duncan Lewis through the efforts of the Gatwick Detainees Welfare Group, however they were not able to assist because of the lack of availability of legal aid without exceptional funding. AT's statement sets out how he continued to endeavour to find representation. He received the Decision Letter refusing his application dated 10 November 2016 on 11 November 2016. AT managed to obtain an appointment to see a solicitor on 1 December 2016 for the purpose of seeking a judicial review of the decision.
42. AT says that he was given an immigration summary on 17 November 2016 and told to give that to the solicitor when he had his appointment. He says that he was not told that he was being removed on 19 November 2016 until the evening of 18 November 2016 and that information with respect to the date of his removal did not appear on the immigration summary. By then it was too late for him to be able to take any further steps and he describes how he was only able to speak to FF briefly to say that he was going.
43. AT was returned to Gambia on 19 November 2016 and released by the authorities to return to his family in Gambia the following day. AT no longer considers himself at risk because of his political opinions since President Jammeh left the Gambia and President Barrow took power in January 2017.
44. On 22 November 2016, the Gatwick Detainees Welfare Group were notified by Bail for Immigration Detainees, who had been acting for AT for the purpose of seeking bail, that AT had been removed. On that day they contacted the Public Law Project who are now acting on behalf of AT, FF and BT. The litigation history is set out above and referred to in my separate ruling refusing the SSHD relief from her failure to comply with the CPR and court orders.

The Legal Framework

Procedural Fairness

45. In order for public law decisions to be procedurally fair, "… a person who may be adversely affected by the decision will have an opportunity to make representations on his behalf either before the decision is taken with a view to procuring a favourable result; or after it is taken, with a view to procuring its modification; or both…fairness will very often require that he is informed of the gist of the case which he has to answer." R v SSHD ex p Doody [1994] 1AC 560. This principle, set out in Doody is fundamental in any determination of whether a public law decision has been made fairly. An affected party must have the opportunity to know both what the reasons are for making any particular decision and to challenge any adverse findings.
46. Article 8 does not contain explicit procedural requirements, but it is recognised that the decision-making process potentially interfering with matters protected by article 8 must be fair and, as such, afford due respect to the interests protected by article 8. A person affected by such decisions has to be involved in the process to a degree which is sufficient to provide them with necessary protection of their interests.
47. In R (Gudanaviciene & Ors) v Director of Legal Aid Casework [2015] 1 WLR 2247, the Court of Appeal set out that:

"… (i) decision-making processes by which article 8 rights are determined must be fair; (ii) fairness requires that individuals are involved in the decision-making process, viewed as a whole, to a degree that is sufficient to provide them with the requisite protection of their interests: this means that procedures for asserting or defending rights must be effectively accessible; and (iii) effective access may require the state to fund legal representation."

Fresh Claim

48. The SSHD was required to consider whether AT's claim was a repeat claim or a fresh claim under paragraph 353 of the Immigration Rules. Section 353 of the Immigration Rules provides that:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraphs 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(1) had not already been considered; and

(2) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas."

49. The test to be applied by the SSHD is not whether she thinks the new claim is a good one or should succeed but it is "whether there is a realistic prospect of an adjudicator, applying the role of anxious scrutiny" allowing the appeal (see WM(DRC) v SSHD [2006] EWCA Civ 1495). In WM Buxton LJ set out that:

"The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that inquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Secondly, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative, it will have to grant an application for review of the Secretary of State's decision."

50. Whether a claim has a "realistic prospect of success" is a low threshold test. In AK (Sri Lanka) v SSHD [2009] EWCA Civ 447, Laws LJ set out that:

"A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success. "Realistic prospect of success" means only more than a fanciful such prospect."

In R(MN) Tanzania v SSHD [2011] 1 WLR 3200 the Court of Appeal set out the approach of the court on a judicial review. The court's task is not to reach its own conclusion on the threshold test but rather to review the rationality of the Secretary of State's conclusion.

51. In order for the SSHD to show she considered the claim with anxious scrutiny, she needs to show that every factor has been considered carefully. Carnwarth LJ in R (YH) v SSHD [2010] Civ 116 set out that the expression in itself is uninformative but that it has:

"… by usage acquired special significance as underline the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account…there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies."

Article 8

52. Section 6 of Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Article 8 of Schedule 1 provides that:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others"

53. It is acknowledged that family life exists between couples who are living together in a relationship which is akin to marriage and between a child and his parents even if they are no longer together as a couple. It has a broad meaning. In Keegan v Ireland [1994] EHRR 342, the ECHR held that the notion of the family in Article 8:

"is not confined solely to marriage-based relationships and may encompass other de factor "family" ties where the parties are living outside of marriage. A child born out of such a relationship is ipso iure part of that "family" unit from the moment of his birth and the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no-longer co-habiting or if their relationship has then ended. (para 44)"

And further:

"… where the existence of a family ties with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be created that render possible as from the moment of birth the child's integration in his family…It is, moreover, appropriate to recall that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life even when the relationship between the parents has broken down."

54. In this case, AT is a Gambian national, FF, his wife by virtue of a proxy marriage in Gambia, has indefinite leave to remain for humanitarian reasons, and their son BT is a British citizen. In R (MM (Lebanon) v Home Secretary [2017] UKSC 11, the Supreme Court made clear that:

"… there is no general obligation to respect a married couple's choice of country in which to reside or to authorise family reunification. It will depend upon the particular circumstances of the persons concerned and the general interest. Factors to be taken into account are the extent to which family life would effectively be ruptured; the extent of the tied in the host country; where there are "insurmountable obstacles" (or, as it has sometimes been put in other cases, "major impediments"…) in the way of the family living in the alien's home country; and whether there are factors of immigration control (such [as] a history of breaches of immigration control) or public order weighing in favour of exclusion…If family life was created at a time when the people involved knew that the immigration status of one of them was such that persistence of family life in the host state would be from the outset be precarious, "it is likely only to be in exceptional circumstances that the removal of the on-national family member will constitute a violation of article 8…the Grand Chamber had decided, in Neulinger v Switzerland (2010) 54 EHRR 31, that the best interests of any child whose family life was involved had to be taken into account in article 8 cases… In Jeunesse [Jeunesse v The Netherlands (2014) 60 EHRR 17], therefore, the Grand Chamber went on to say, at para 109:

"Where children are involved, their best interests must be taken into account. On this particular point, the court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight…" "

Immigration Rules

55. Appendix FM of the Immigration Rules sets out the requirements for leave to remain to be granted on the grounds of family life with a person present and settled in the UK. In AT's case that requires consideration of leave to remain as a partner of FF and as the father of BT.
56. Appendix FM provides that the relationship between the applicant and their partner must be genuine and subsisting, that if they are married it must be a valid marriage, if they have been living together in a relationship akin to a marriage they must have been living together for at least two years prior to the date of application, and they must plan to live together permanently in the UK.
57. Appendix FM provides that the requirements to be met for limited leave to remain as a parent are that the applicant and the child are in the UK, that the applicant satisfies the suitability requirements, and that the eligibility requirements are satisfied namely that the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not the other parent or direct access to the child and that they are taking and intend to continue to take an active role in the child's upbringing.
58. The requirements for leave to remain are met if the relationship requirements are satisfied and either limbs of EX.1. are satisfied which provides that the paragraph applies if:

"(a)(i) the applicant has a genuine and subsisting parental relationship with a child who

(aa) is under the age of 18 years at the date of the application…; and

(bb) is in the UK; and

(cc) is a British Citizen or settled in the UK; and

(ii) it would not be reasonable to expect the child to leave the UK; or

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection; and there are insurmountable obstacles to family life with that partner continuing outside the UK.

EX.2.For the purposes of paragraph EX.1.(b) "insurmountable obstacles" means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."

59. While the Immigration Rules set out the balance to be struck in general cases based on family and private life, it is necessary to consider in each case whether the decision strikes the correct balance. The SSHD therefore has a discretionary power to grant leave outside the Immigration Rules. As was explained by the Supreme Court in R(Agyarko v Ikuga) v Secretary of State for the Home Department [2017] UKSC 11:

"If the Applicant or his or her partner would face very significant difficulties in continuing their family life together outside the UK, which could not be overcome or would entail very serious hardship, then the "insurmountable obstacles" test will be met and leave will be granted under the Rules. If that test is not met, but the refusal of the application would result in unjustifiably harsh consequences, such that refusal would not be proportionate, then leave will be granted outside the Rules on the basis that there are "exceptional circumstances."

60. Further in Agyarko, Lord Reid set out that:

"It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test… [The SSHD] has defined the word "exceptional" as already explained, as meaning "circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with article 8… "exceptional" does not mean "unusual" or "unique".

Section 55 of the Borders, Citizenship and Immigration Act 2009

61. Section 55 of the 2009 Act provides that the Secretary of State must make arrangements for ensuring that any function of the Secretary of State in relation to immigration, asylum or nationality is discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. In JO and Others (section 55 duty) Nigeria v SSHD [2014] UKUT 00517, McCloskey P held that in order to discharge the s.55 duties the initial decision maker must be properly informed. The duty on the decision maker to be properly informed, and thus equipped, to make a careful examination of the facts had also been emphasised by the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4 and in Zoumbas v SSHD [2013] UKSC 74 where the court had set out the approach to the assessments of children's best interests. Those best interests should be identified first and are a primary consideration in the Art 8 assessment, and, whilst they may be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant. The requirements on the decision maker to be adequately informed and to conduct a scrupulous analysis are elementary pre-requisites to the inter-related tasks of identifying the child's best interests and then balancing them with other material considerations. Further:

"…these provisions, considered in tandem with the principles enunciated by the Supreme Court and the public law duties … envisage a process of deliberation, assessment and final decisions of some depth… something cursory, casual or superficial, will plainly not be in accordance with the specific duty imposed by s.55(3) or the overarching duty to have regard to the need to safeguard and promote the welfare of any children involved in or affected by the relevant factual matrix."

62. In R (TS) v Secretary of State for the Home Department [2010] EWHC 2614, Wyn Williams J set out that"…The terms of the written decision must be such that it is clear that the substance of the duty was discharged." As was set out in JO and others, "the question for the court is 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." As was stated by McCloskey P in JO, "something cursory, casual or superficial will plainly not be in accordance with the specific duty imposed by section 55(3)."

Decision Letter

63. AT received the decision letter dated 10 November 2016 on 11 November 2016 while he was in detention. His representations were refused and the letter set out that he did not qualify either for asylum or humanitarian protection and that he did not have a Human Rights claim. It was further considered that he did not qualify for leave outside the Immigration Rules on an exceptional basis.
64. AT does not seek to contend that he has an asylum claim or a claim to humanitarian protection now that the political situation in Gambia has changed. AT, FF and BT do seek to challenge, by this judicial review, the decision that AT did not have a claim based upon there being an unjustified interference with his article 8 rights by reason of his removal to Gambia. All three claimants submit that their right to a family life is being interfered with by reason of AT's removal and the impact upon BT and his relationship with his father is said to be particularly acute. Diane Jackson, the independent social worker, sets out how it is not possible (save for on the most superficial level) for adults and children to build or sustain relationships by modern communication and that "It is impossible for a child of BT's age to develop a relationship with a father he "met" at the age of three weeks and with whom he has had no further live contact." Diane Jackson describes how FF and AT talk regularly on the phone and have only occasional video calls because of the expense and that:

"Without regular face to face contact it is impossible for AT to build a relationship with BT who is only eleven months old, thus at present AT can only be a distant observer of BT through the communication with his mother FF. Such communication is not what AT wants or what BT needs, if AT were living with FF and BT he would be building a relationship with his son by holding and cuddling him, by feeding and bathing him. AT would be sharing the child care with FF and both would be building a strong secure attachment with BT…"

The report continues by setting out how infants form their primary attachments between 6 months and 2 years. As BT's first birthday was on 4 October 2016, he is in the midst of this process. As FF cannot return to the Gambia because of the risk to her, the removal of AT to the Gambia removed him from the lives of both FF and BT.

65. AT's claim was considered in order to determine whether it was a repeat claim or a fresh claim under paragraph 353 of the Immigration Rules and the Secretary of State found that the further submissions were "not significantly different from the material which had previously considered". That statement is plainly incorrect. All parties agree that both AT and FF failed to mention their relationship, the marriage, the living together in FF's home and the pregnancy until AT was unexpectedly arrested on 26 September 2016. The information provided up to and including 19 October 2016, including the birth certificate for BT, the register of the Gambian marriage between FF and AT, a photocopy of an authentication of the marriage certificate and photographs was not information that had been before the SSHD when his asylum claim and appeal failed. Indeed, it is the failure of AT to mention his relationship at an earlier stage that gave rise to the SSHD's scepticism that the relationship with FF was a genuine and subsisting one. The Immigration Officers who attended with AT when he collected his belongings from FF's property noted that he referred to her as "his girlfriend" and that she was heavily pregnant. It is also said by FF and AT that she was distressed by what was happening. That is all further information available to the SSHD.
66. The statement that the new submissions did not significantly differ from the material which had previously been considered indicates, at the very least, a lack of care in the writing of the Decision Letter.
67. The Decision Letter also set out that"it is not accepted that the further submissions would create a realistic prospect of success in front of an Immigration Judge applying the test of anxious scrutiny." The central issue in this case is whether the SSHD could reasonably conclude that the submissions put forward by AT had no realistic prospect of success before a Tribunal judge, applying the rule of anxious scrutiny and on consideration of the evidence available, and that which could properly have been available had the SSHD undertaken further enquiries.
68. While the Decision Letter sets out the correct approach to considering whether further submissions amount to a fresh claim, referring to WM and YH and AK and that the test to surpass is a modest one, the mis-recording of the further submissions not being significantly different again supports the view that there was a lack of careful assessment of this particular case. The SSHD relied upon the reasoning of the Court of Appeal in YH as being analogous to the position of AT as the findings were "in connection with another claimant who had similarly been disbelieved and tendered new supporting evidence in connection with a fresh claim for asylum". In YH, the previous claim had been rejected as "wholly incredible". That was not the case here, where the Tribunal judge had determined that AT was generally plausible with areas of consistency but that his credibility had been undermined by a number of inconsistencies and the amount of time it had taken AT to claim asylum. There was no finding that AT's case was wholly incredible. The SSHD relies upon those earlier findings as to AT's credibility, together with the failure to mention at an earlier stage the relationship with FF and that they were expecting a child, or an explanation as to why there had been the failure to mention the relationship, as giving rise to good grounds for scepticism.
69. The SSHD found that AT did not fulfil the eligibility requirements for leave to remain as FF's partner, both with respect to not showing the relationship with FF to be genuine and subsisting and with respect to not showing that they intended to live together permanently in the UK.
70. With respect to both those decisions the SSHD fell into error by failing to give AT a proper opportunity to provide further evidence to counter the concern that this was not a genuine and subsisting relationship where they intended to live together permanently in the UK. The evidence submitted by AT relating to his proxy marriage and the photographs of him with FF, combined with what the Immigration Officers witnessed on 27 October 2016 are all matters that supported a finding that there was a genuine and subsisting relationship. It was not put to AT prior to the Decision Letter that it was not accepted that he had a genuine and subsisting relationship with FF and so he was given no opportunity to counter the view being taken against him. While AT could have provided further evidence after the fresh claim decision issued on 10 November 2016, that ignores the fact that he was in detention at that time and without the benefit of any legal advice.
71. The decision maker was concerned that there was a failure to provide "a well rounded pattern of documentary evidence from a variety of sources". If there was a concern that AT ought to have been providing more then, in order for him to have a genuine involvement in the process so that he could protect his own interests, the concerns of the SSHD ought to have been communicated to him before the decision to reject his submissions was made. For example if, as appears to be the case, the lack of a statement from FF counted against him, then that ought to have been set out to him so that a statement could be provided. I have seen statements from FF and there is no reason to believe that those statements would not have been made sooner and presented to the Home Office at an earlier stage had they been sought. As AT was without legal representation and detained he cannot be expected to know what the SSHD expected from him as additional evidence when he had provided evidence of his marriage. Further, he cannot be expected to know, without the SSHD explaining it to him, that he would have submitted further evidence upon receipt of the Decision Letter.While AT could not establish that he had been living with FF for a period of two years he was relying at the time of making his submissions on the fact that he was married to FF and provided evidence of that marriage. The definition of "Partner" as set out at Gen1.2 of the Immigration Rules was therefore satisfied.
72. It is a mandatory eligibility requirement under E-LTRPT.1.7 that the relationship be genuine and subsisting. It appears that the decision that AT did not have a genuine and subsisting relationship with FF stems from the fact that their relationship had not previously been disclosed and no explanation for that failure disclose had been given. Further, it had been recorded against AT that he had said that he was living elsewhere, it being stated in various places in the Decision Letter "by your own account you do not live with [FF]". AT's case is that he did not know that the SSHD believed he had said he did not live with FF and he further says that was plainly not the case when the Immigration Officers accompanied him to pick up his belongings from FF's flat. AT ought to have been given the opportunity to counter what he says is a false record and both he and FF have now given a plausible explanation as to why they had not previously mentioned their relationship. While that was not information before the SSHD, had she undertaken further enquiries in light of what the Immigration Officers had witnessed, then she would have had a full picture presented to her.
73. As it is AT's case that he was in an ongoing relationship with FF, he cannot satisfy the mandatory eligibility requirements for obtaining leave as a parent under the Immigration Rules set out in E-LTRPT.2.3. and E-LTRPT.2.4.
74. The SSHD retains a residual discretion to grant leave outside the Rules and the procedural unfairness of the decision making process with respect to AT's relationship with FF was repeated with respect to AT's relationship with BT.
75. It appears that the SSHD accepts that AT is the father of BT. The birth certificate provided to the SSHD evidences that clearly and AT had signed a statutory declaration of his paternity, witnessed by a detention officer, while in detention at Brook House. Further, the SSHD was aware, or ought to have been aware, that FF had visited AT on two occasions, having been turned away on the first occasion because of the lack of a birth certificate.
76. Despite the apparent acceptance that AT is the father of BT, there is clear confusion within the Decision Letter in that it is accepted that BT lives in the UK (paragraph 43) but also that "you have provided no details as to [BT]'s nationality, and you have provided no evidence that he currently resides in the UK…" (paragraph 54). That statement is made despite the fact that AT had submitted the birth certificate showing himself to be BT's father and FF to be BT's mother, that BT was born on 4 October 2016, and therefore a little over a month old at the date of the Decision Letter, and born in the London Borough of Southwark. The SSHD knew, and apparently accepted, that BT was living with his mother and that she was a Gambian national with indefinite leave to remain in the UK. The finding that there was no evidence that BT was living in the UK is not a rational finding in light of the information before the SSHD.
77. The only matter relied upon for a finding that AT did not have a family life with FF and BT is that he had told the Immigration Officers that he lived with his "boyfriend" or friend. That finding was not something AT knew about and not something he had the opportunity to correct.
78. The conclusions in the Decision Letter both with respect to AT's relationship with FF and his relationship with BT, flow from the record that AT said he had lived with his "boyfriend" or "friend". That statement was apparently made on 18 October 2016 when he was detained, but AT was not detained on 18 October 2016 and such a statement is contrary to all the other information provided by AT. If, as was the case, the finding being relied upon by the SSHD was not consistent with other evidence, further investigations ought to have been undertaken and AT ought to have had the opportunity to correct it.
79. While it is said in the Decision Letter that "[BT]'s best interests have been considered in line with Section 55 …" the contents of the Decision Letter do not support that bald statement and an analysis which is "cursory, casual or superficial, will plainly not be in accordance with the specific duty imposed by s.55(3) or the overarching duty to have regard to safeguard and promote the welfare of any children involved in or affected by the relevant factual matrix." per McClosky J in JO. BT lives with FF in the UK. AT is BT's father and lives separate to him because he was detained prior to BT's birth and removed to Gambia a few weeks after his birth. FF cannot return to Gambia as a result of her previous abuse and after being trafficked, she does not have a choice of whether to return to Gambia with BT in order to spend her life with AT as there are insurmountable obstacles to her return. The consequence of removing AT was to separate him from both his wife and son and the report of Diane Jackson sets out the damage to the relationship between AT and BT caused by AT's removal. The interference in that relationship cannot properly have been considered to be in the best interests of BT.
80. The SSHD was under a duty to be properly informed and conduct a "scrupulous analysis" of all the evidence. Had she fulfilled that duty it is difficult to see how the SSHD could have said that AT did not have a realistic prospect of success of convincing a Tribunal Judge of his human rights claim. It appears that that SSHD failed to take into account the situation of both FF and BT caused by the removal of AT.
81. The Decision Letter contains a clear error where it is stated that no details of BT's nationality has been provided and no evidence that he currently resides in the UK. BT was born weeks before the Decision Letter in the UK to a mother who resides in the UK, it being stated in a later part of the same Decision Letter (against AT) that "it is considered that [BT] lives with his mother…The child would be remaining in the UK with his mother who is his primary nurturer and care giver." AT's removal deprived both AT and BT of any opportunity to develop their relationship as father and son. The evidence before me is that efforts are made to keep AT involved in decisions affecting the welfare of BT and to allow AT to see BT by video link, but the expense and logistics of that contact are extremely difficult and not a compensation for in-person contact.
82. The Decision Letter fails to refer to the policy and guidance relating to family separations and it does not appear that this was considered. It merely states "that you have failed to substantiate that you have a genuine and subsisting parental relationship" but AT could not establish such a relationship in circumstances where his son was born after his detention and only had the opportunity to visit once prior to AT's removal. The SSHD ought to have been considering, exercising anxious scrutiny, whether there was a realistic prospect of AT convincing an Immigration Tribunal Judge that he should be allowed to remain in order to develop a father/son bond with his very young child. In order to satisfy the test of anxious scrutiny, the SSHD need to undertake a proper enquiry and considered decision. That, in my judgment, is missing from this decision.
83. As I have set out above, AT was unable to obtain legal advice or representation from the date of being notified of his liability to removal and his actual removal. This lack of representation is something which has an impact upon whether AT had the opportunity to have meaningful engagement with the decision making process. Had AT had the benefit of legal advice then he would have been in a position to halt his removal as judicial review proceedings would have been issued at that time. AT, without legal advice, was in no position to issue proceedings upon receipt of the decision letter on 11 November 2016.
84. The SSHD was obliged to evaluate the facts and reach legal conclusions on those facts exercising anxious scrutiny. AT had to satisfy the relatively modest test of establishing that there was a realistic prospect of success in an application before an adjudicator in order for the SSHD to find that the submissions made by AT in furtherance of his Article 8 claim was a fresh claim for the purposes of paragraph 353 of the Immigration Rules. Her conclusion that the submissions did not amount to a fresh claim for the purposes of paragraph 353 of the Immigration Rules is not one which, in my judgment, a reasonable decision maker could have reached on the basis of the facts before her.
85. The Secretary of State was further obliged, by virtue of section 55 of the Borders, Citizenship and Immigration Act 2009, to discharge her function having regard to the need to safeguard and promote the welfare of BT as a child in the United Kingdom. The best interests of the child should be identified first and are a primary consideration in the Article 8 assessment. While the child's interests may be outweighed by culmulative effect of other considerations, no other consideration can be treated as inherently more significant (see JO & Ors v SSHD [2014] UKUT 517).
86. This is a flawed decision. The SSHD failed to undertake the approach the new submissions made with anxious scrutiny and failed to take into account all the relevant facts. The Decision Letter is partial and is based on a clear scepticism as to the truth of AT's account arising from the failure of AT and FF mentioning their relationship and the pregnancy at any time before AT was detained. The SSHD was unwilling to move away from that position of scepticism despite the evidence before her and available to her on further enquiry.
87. The removal of AT was unlawful as it was made on the basis of a fundamentally flawed decision.
88. The Claimants are entitled to the declaration sought and to an order that the Secretary of State uses her best endeavours to return AT to the UK.

The Removal

89. AT was removed on 19 November 2016. He says that he was not notified that he was to be imminently removed when he was provided with the immigration factual summary on 17 November 2016. At that time he was simply told to provide the summary to his solicitor once he had one. He had an appointment to see a solicitor on 1 December 2016. He says he was not told that he was being removed on 19 November 2016 during the evening of 18 November 2016. At that time he was not informed of the time of the flight or anything about the flight details. He says he had difficulties in contacting anyone to obtain assistance and could not obtain legal advice at that late stage to halt the removal. AT says he told the escorts that he had a wife and child but as there were no applications outstanding the removal went ahead.
90. It is said on behalf of AT that his removal on 19 November 2016 was without adequate notice and in breach of the SSHD's policy on notice of removal.
91. The immigration decision/notice of liability of removal was dated 15 September 2016 and had been served on AT on 19 September 2016. The removal window opened 7 days later on 26 September 2016 and remained open for up to three months from the date of notice. The SSHD contends that removal on 19 November 2016 was permitted on the basis of that notice.
92. It is submitted on behalf of AT that the removal window came to an end once the submissions were made with respect to FF and her being pregnant and that he was entitled to 72 hours' notice of removal.
93. While it is not accepted by the SSHD that the removal window had come to an end, the late disclosure provided by the SSHD contains evidence that AT may have been given 72 hours notice of removal in any event, as a CID note indicates that he was informed of the removal on 16 November 2016 as follows:

"Pre-flight check – 72 hour

RDS served

Passport @ heathrow 06/10

M/O in place

No barriers"

94. The contents of that note are contradicted by the statement of Naomi Blackwell, Advocacy Coordinator at Gatwick Detainees Welfare Group, who refers to a note in their records that on 16 November 2016 AT had been given an appointment to see solicitors and that he had been advised to show the refusal letter and to obtain advice on a judicial review. Had AT been informed that he was to be removed on 19 November 2016 then it would be expected that would have been the priority matter to be dealt with and it would have been recorded in the note.
95. There is a straight conflict of fact with regard to the issue of the removal and whether sufficient notice was given. It is not a conflict that I am in a position to resolve. The very real practical difficulty for AT was, as has been set out by Silber J in R (oao Medical Justice) v SSHD [2010] EWHC 1925, in obtaining "proper" access to justice in such a short time frame.
96. For the purposes of this judgement, given my determination with respect to the Decision Letter and the removal based upon that decision, I neither need to, nor is it appropriate given the conflict in the evidence, to determine this issue.

Unlawful Detention

97. AT further contends that his detention from 26 September 2016 was unlawful.
98. The power to detain is restricted by the principles first set out by Woolf J in R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704. These principles were distilled by Dyson LJ in R(I) v SSHD [2002] EWCA Civ 888, and approved by the Supreme Court in R (Lumba) v SSHD [2012] 1 AC 245.
99. The principles can be summarised as follows:

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 reasonable diligence and expedition to effect removal.

100. In Lumba Lord Dyson said that:

"A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised…In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law."

101. AT does not seek to suggest that his detention on 26 September 2016 was unlawful in light of the imminent removal that was due to take place on 27 September 2016. However, it is submitted on his behalf that the detention became unlawful once the removal was cancelled.
102. The burden falls upon the SSHD to establish why detention continued after 27 September 2016 as there is a general presumption against detention. The SSHD says that the removal was only cancelled because AT became disruptive and that he was seeking to prevent his removal so that he would need to be accompanied. AT denies that he was disruptive and contends that he merely stated that he could not be returned because at that time he feared for his own safety if returned, and the fact that his wife was heavily pregnant.
103. It is not for me to make a determination as to whether AT was disruptive or not although it is clear from the notes that the removal was cancelled and that AT was thereafter to be accompanied on a removal. That does provide support to SSHD's position for the fact that he was physically resistant to removal. In my judgment that gives good grounds for the SSHD continuing to detain after cancellation of the removal directions for fear of AT absconding, even in circumstances where he had, until his arrest on 26 September 2016, been voluntarily reporting.
104. On 5 October 2016, AT made a request for temporary admission on the basis that his wife had just given birth to his son but that request was refused on the basis that the SSHD required further evidence from AT. The CID notes for 5 October 2016 includes a note that AT be asked to provide evidence that he was in a subsisting relationship with his alleged girlfriend and evidence that the child is his (i.e. birth certificate with his name on it) "if the subject provides this evidence we will have to seek Family split". It appears that AT agreed to speak to his solicitor about providing the evidence requested. Reviews were undertaken on 10 October 2016 and 24 October 2016 and the records of those reviews note that no evidence had been provided that the child was his. The view of the SSHD, as is clear from those reviews, was that the assertion of being in a relationship and having a recently born son were designed to frustrate removal. At that stage, in light of the removal having been cancelled and an accompanied removal being required, and the lack of documentation provided to support the assertion that he had a recently born son, the SSHD could properly justify continued detention.
105. AT provided a copy of the birth certificate together with his marriage certificate and other documentation on 28 October 2016 and that was forwarded for further consideration on 1 November 2016. It is not clear as to whether consideration was being given at that time as to whether he should continue to be detained or whether it was simply with respect to the decision as to whether he had a fresh claim.
106. Once that evidence was submitted by AT the situation altered. No longer is this a case where the SSHD could justifiably conclude that AT was asserting the existence of a relationship and the birth of a son simply to frustrate removal. AT had provided evidence that he does have a wife and son. That evidence provides an explanation for his behaviour on 27 September 2016 and it also takes away the concern that he might abscond as he has settled ties in the form of a family from whom he does not wish to be split. The determination of the SSHD with respect to the further submissions was made by 10 November 2016. In my judgment that is a reasonable period of time in which the SSHD could consider the evidence provided by AT as to his family situation. The justification for continued detention, namely the risk of absconding, no longer existed.
107. In my judgment, therefore, the detention of AT was unlawful from 10 November 2016, when the evidence relating to his family was submitted and had been considered. The removal directions appear to have been set on 30 September 2016, although it is AT's evidence he was not told until 18 November 2016 of his imminent removal. His detention from 10 November 2016 was, in my judgment, unlawful on two grounds. The decision made on 10 November 2016 was unlawful and had a lawful decision been made the removal directions would have been cancelled. Further, the justification for detention because of the risk of absconding no longer existed. In either case he ought to have been released on 10 November 2016. On a practical basis, had he been released on that date he would have had a much greater opportunity to obtain the legal advice he was having such difficulty in obtaining. It is likely that the issues with respect to the Decision Letter would have been aired at that time and he would not have been removed on 19 November 2016.
108. Consequently, in my judgement, AT was unlawfully detained from 10 November 2016 until his removal.

Conclusion

109. For the reasons set out above I find that the Decision Letter was flawed and the removal, based upon that decision, unlawful. I also find that the detention of AT was unlawful from 10 November 2017.
110. An order will need to be made with respect to my findings and that the Secretary of State is to use her best endeavours to return AT to the United Kingdom in order that he can put forward his Human Rights appeal to the Tribunal. Directions will also need to be given with respect to determination of damages being transferred to the County Court at Central London. I would be grateful if a draft of the proposed Order is provided at, or before, the hearing at which this judgement is being handed down.

Anonymity

111. All three claimants have benefited from the order of McGowan J. granting them anonymity.
112. There is good reason for an order of anonymity of the Claimants to continue, and that is what I order. FF is vulnerable and has indefinite leave to remain based upon humanitarian grounds. Her identity and her relationship with AT should be protected from public knowledge as there is the potential of adverse consequences if it were widely known. Similarly, BT is a very young child and his well-being and future needs protection.