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
		30/11/2017

Timothy Brennan QC: Introduction

1. This application for judicial review concerns operation of the provisions in Schedule 2 to the Immigration Act 1971 which relate to release on bail from immigration detention and the interrelationship of those provisions with removal directions made by the Secretary of State.
2. I heard argument on 1 November 2017 and circulated a draft reserved judgment to the parties. Before I handed it down, the Court of Appeal gave judgment in Lukasz Roszkowski v Secretary of State for the Home Department [2017] EWCA Civ 1893. I invited and duly received written submissions from both counsel and I have taken those further submissions into account.
3. The claimant challenges the lawfulness of his detention by the defendant pending removal to Pakistan. He applied to the First-tier Tribunal to be released on bail but was not released because, at a hearing on 14 February 2017, the First-tier Tribunal was told that directions were in force for removal of the claimant to Pakistan within 14 days, that consent of the Secretary of State was required for his release and that consent was refused. It is the claimant's contention that, on the occasion of the hearing, the relevant removal directions were not "in force" because notice of them in writing had not been served on him. He contends that he should have been released on bail notwithstanding the directions and the imminence of his removal. After delays, the claimant was ultimately removed to Islamabad on 18 April 2017, having remained in detention until that was effected.

The statutory sche me

4. The Immigration Act 1971 (as amended) provides, in s 4(1) – "Administration of control

(1) The power under this Act to give or refuse leave to enter the United K ingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom [… or to vary or cancel leave …] shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.

(2) The provisions of Schedule 2 to this Act shall have effect with respect to—

…

(d) the detention of persons pending examination or pending removal from the United Kingdom;

And for other purposes supplementary to the foregoing provisions of this Act."

5. As is apparent, the Secretary of State's powers to give, vary or cancel leave to remain in the United Kingdom are to be exercised by "notice in writing" (s 4(1)). There is no requirement for notice in writing in the provisions of Schedule 2, given effect by s 4(2) and discussed below.
6. Under the heading "Administrative Provisions as to Control on Entry, etc ", Schedule 2 to the Act (as amended) provides in part –

"Detention of persons liable to examination or removal

…

16(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—

(a) a decision whether or not to give such directions;

(b) his removal in pursuance of such directions.

…

Temporary admission or release of persons liable to detention

…

22(1) The following namely—

(a) a person detained under paragraph 16(1) above pending examination;

(aa) a person detained under paragraph 16(1A) above pending completion of his examination or a decision on whether to cancel his leave to enter; and

(b) a person detained under paragraph 16(2) above pending the giving of directions,

may be released on bail in accordance with this paragraph.

(1A) An immigration officer not below the rank o f chief immigration officer or the First-tier Tribunal may release a person so detained on his entering into a recognizance … conditioned for his appearance before an immigration officer at a time and place named in the recognizance … or at such other time and place as may in the meantime be notified to him in writing by an immigration officer.

…

(2) …

(3) …

(4) A person must not be released on bail in accordance with this paragraph without the consent of the Secretary of State if—

(a) directions for the removal of the person from the United Kingdom are for the time being in force, and

(b) the directions require the person to be removed from the United K ingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail."

7. The reference in paragraph 16(2) of Schedule 2 to "directions under any of paragraphs 8 to 10A or 12 to 14" and in paragraph 22(4) to "directions for the removal of the person from the United Kingdom" are references to such directions as may be made by immigration officers or the Secretary of State for removal of an individual from the United Kingdom in certain circumstances. The scheme of the paragraphs dealing with removal directions is that, where a person is refused leave to enter the United K ingdom, directions for his removal may be given to the captain of the ship or aircraft in which he arrives and that, where that is not practicable, directions may be given for his removal in accordance with arrangements to be made by the Secretary of State. Under further provisions to be found in the Immigration and Asylum Act 1999, s 10(7), the Secretary of State may give like directions for removal of persons unlawfully in the UK but who originally had leave to enter. The paragraphs of Schedule 2 concerning removal directions say nothing about a requirement to give notice to the individual, in writing or otherwise. They refer to a process of making arrangements for his physical removal. Directions are given not to the person to be removed, but to the person doing the removing.

The claimant's bail application

8. The claimant is a Pakistani national who arrived in the United Kingdom as a student in April 2007. His leave (as extended) expired in August 2013 and he overstayed. He was unsuccessful with various applications and his appeal rights were exhausted. He had initially had leave to enter, but removal directions in respect of him could now be given under the Immigration and Asylum Act 1999 s 10(7) because, having entered with leave, he was at the relevant time unlawfully in the UK with no leave to remain (see s 10(1)).
9. On 12 January 2017 the claimant was arrested and served with form RED.001, telling him that, as a person with no leave to remain in the United Kingdom, he was liable for removal under s 10 of the Immigration and Asylum Act 1999. He was told that if he did not leave the United K ingdom as required, he would be liable to enforced removal to Pakistan. The form went on to say that: "If you wish to seek legal advice you must do so now." The form stated that the claimant would "not be removed before 18/01/17 9:00. After this time and for up to three months from the date of this notice, you may be removed without further notice." This meant that he might be removed without notice at any time up to 12 April 2017. He was detained. Application was made to the Pakistan High Commission for emergency travel documentation in order to effect his deportation.
10. On 3 February 2017 the claimant applied for bail and a hearing date before the First- tier Tribunal was set for 14 February 2017.
11. Written evidence has been filed by the defendant, exhibiting a dated computer record, and a supporting internal email. As explained in a witness statement, these show that administrative provision was made by the Secretary of State, allocating the claimant to a confirmed seat on a Home Office charter flight to Islamabad, Pakistan scheduled for 28 February 2017 and that this was done on 13 February 2017. This constituted the making of removal directions, as authorised by the Immigration and Asylum Act 1999, s 10(7) applying paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971.
12. Notwithstanding the contemporaneous computer records, a document dated 16 February 2017 (a "Monthly Progress Report To Detainees" on form IS.151F) states that removal directions were "set and served" on 16 February 2017. It also says this [sic]:

"Directions were set for your removal within 14 days of your bail hearing 14/02/2017 before a Judge of the First Tier Tribunal. Consequently, the Secretary of State must consent to bail being granted in practise. Having considered your circumstances, consent was not given because removal directions are in place for the 28/02/2017 and there are no other barriers to your removal."

13. It is clear from the computer record, and I understand the claimant to accept in the light of that evidence, that the directions had been made on 13 February, not 16 February 2017, even if they were repeated or notified then. The claimant was not told about the directions of 13 February 2017 when they were made.
14. On 14 February 2017, the claimant's case duly came before the First-tier Tribunal (Tribunal Judge Parker) for determination of the bail application. The claimant participated through a video link and was represented by counsel, Mr Dolan, who was physically present at the hearing centre before the tribunal judge. Prior to the hearing Mr Dolan was told by the presenting officer representing the Secretary of State that removal directions had been made and that the claimant was booked on a charter flight to Pakistan on 28 February 2017. When this information was later given to the tribunal, the tribunal judge invited the presenting officer to provide evidence of the removal directions and granted an informal adjournment. Eventually a faxed document was received which, the tribunal was told, depicted a screenshot of a computer showing that removal directions had been set. Unfortunately the document was illegible. The presenting officer told the tribunal that a colleague had told him that the screenshot showed the making of directions. A more legible version of such a screenshot was in evidence on the judicial review and it did indeed show, as was accepted on behalf of the claimant, that the removal directions had been made, and the record created, on 13 February 2017.
15. At some stage at the hearing on 14 February 2017 the tribunal judge initially decided to grant bail. There is no formal order or note of judgment available. Following a telephone call, a message was passed to the tribunal judge by the presenting officer to the effect that consent to release of the claimant on bail had been refused by the Secretary of State. The outcome was a letter, dated 14 February 2017, from the clerk to the First-tier Tribunal and addressed to the Immigration Removal Centre at Gatwick where the claimant was held. The letter stated that "I can confirm that bail was GRANTED but Home Office consent refused" (capitalisation as in original). The claimant was kept in detention.
16. By the time the letter to the Immigration Removal Centre was drawn up, the tribunal must have been satisfied, albeit by informal material, that removal directions had been made, as indeed they had on 13 February 2017. This was not a surprising conclusion. The tribunal had the advantage of the account of the presenting officer on instructions, and knowledge of an unsuccessful attempt by his colleague elsewhere to transmit directly to the hearing centre a legible copy of a screenshot showing that removal directions were made. The tribunal was then told of a telephone call stating that a named officer had refused consent on behalf of the Secretary of State. Such consent would be relevant only if relevant removal directions had been made. On this material the tribunal might, in theory, have concluded that there had been an attempt, or attempts, by one or more of the presenting officer and his collea gues to mislead the claimant, his counsel and the tribunal itself by giving a false account of the making of removal directions, and then supporting this by transmitting an illegible document known to be false. The probabilities were however against this, and the tribunal clearly did not come to any such conclusion.
17. The period of 14 days starting with the date of the decision on whether the person should be released on bail (namely 14 February 2017) expired on 27 February 2017, a day earlier than the flight to Pakistan. The removal directions therefore arguably did not fall within paragraph 22(4)(b), but the point may not have been appreciated at the time.
18. The appropriate conclusion from the letter from the tribunal to the detention centre is that by the end of its consideration of the position on 14 February 2017 the tribunal expected the claimant not to be released from detention because the Secretary of State refused consent in light of the removal directions made on 13 February 2017 for removal of the claimant to Pakistan on 28 February 2017. The claimant, certainly through his representative, was informed and knew of the directions. The Immigration Removal Centre was informed of the position.
19. Paragraphs 22(1) and 22(4) of Schedule 2 to the Immigration Ac t 1971 each use the identical phrase

" … be released on bail in accordance with this paragraph".

Despite appearance of the same phrase in the two relevant sub-paragraphs, the decision of the Court of Appeal in Roszkowski shows that paragraph 22 potentially involves a two stage process. The paragraph predicates a decision to release on bail, with a power conferred upon the Secretary of State to prevent implementation of that decision by withholding consent. Accordingly, first comes a decision of the First-tier Tribunal under paragraph 22(1) whether to grant release on bail. Secondly, potentially, in a case where relevant removal directions are in force, comes a decision of the Secretary of State refusing consent to that very release. The judgments of McCombe LJ at [41]-[43] and [51] and of Underhill LJ at [54] contain the core reasoning. Flaux LJ agreed with both judgments.

20. It is accepted by the claimant that he was detained under paragraph 16(2) of Schedule 2 pending a decision whether or not to give removal directions (paragraph 16(2)(a)), or pending his removal in pursuance of such directions (paragraph 16(2)(b)). He was therefore someone whom the First-tier Tribunal had power to release on bail in accordance with the provisions of paragraph 22, see paragraph 22(1)(b). Such release can be effected where an individual is detained under paragraph 16(2)(a) pending the giving of directions, which is what paragraph 22(1)(b) seems primarily to be aimed at. The power to release under paragraph 22(1)(b) necessarily must be read as extending at any rate since paragraph 22(4) was inserted by the Immigration Act 2014, s 7(2) – to the situation where an individual is detained under paragraph 16(2)(b) pending his removal in pursuance of such directions. Paragraph 22(4) would otherwise have no significance.

The claimant's challenge

21. On judicial review the claimant, abandoning earlier allegations of bad faith, contends that on 14 February 2017 the Secretary of State was wrong to refuse consent to release on bail because no relevant removal directions were "for the time being in force" for the purposes of paragraph 22(4) of Schedule 2. As before the tribunal, the claimant takes no point on judicial review that the planned date of removal may have been one day later than expiry of the 14-day period referred to in paragraph 22(4)(b).
22. With sight of the computer records, the claimant now accepts that the removal directions had indeed been made on 13 February 2017. The claimant says that those removal directions were not "in force" until he had notice of them served on him and that, since his release on bail was prevented by the refusal of consent, continued detention was unlawful from 14 February 2017. As ultimately refined in his skeleton argument, the claimant's point is that removal directions must be "in force" in order for the Secretary of State lawfully to exercise the power to refuse consent to release. He says that removal directions are not "in force" unless they have been "set and served on the detainee".
23. The claimant relies on the decision of the House of Lords in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604. That case concerned entitlement of an asylum seeker to access income support. The Home Office determined her asylum cla im and notified the benefits agency without notifying her. The benefits agency, operating a provision in the relevant income support regulations, thereupon treated her as disentitled from further income support on the basis that her asylum application had been determined, even though she had not been told of this. The House of Lords held that constitutional principle required an administrative decision which was adverse to an individual (refusal of asylum) to be communicated to her before it could have the character of a determination with legal effect. The relevant asylum decision determining the appellant's status involved a fundamental right. The relevant immigration rules envisaged notification of an adverse asylum decision. Until that notification was given, there was no operative determination for the purposes of the relevant income support regulation.
24. The decision in Anufrijeva therefore concerned a matter of entitlement and of status. An asylum seeker claiming benefits could not have her entitlement to income support removed by determination of her asylum status without notice to her. It was in that context that Lord Steyn said (at [26]) that –

"Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional pr inciple of our legal system."

25. In the present case, making a removal direction did not affect the entitlement or status of the claimant. He had no leave to remain and had already been notified in writing (on form RED.001) that he was liable for removal. If he had grounds to contend that he was indeed entitled to remain and was not liable for removal, he could have challenged that notification. The decision to set removal directions was different. Removal directions are the administrative arrangements – directed to others, not to the affected individual – to effect physical removal of the affected individual from the United K ingdom. They do not affect his entitlement or his status.
26. Mr Dolan relied on observations of Woolf J in R v Immigration Officer ex parte Shah [1982] 1 WLR 544. That case is authority for the proposition that defective removal directions may be challenged by the person affected, who has a sufficient interest in that challenge even though the directions are addressed to the carrier directed to remove him. It says nothing about whether, for the purposes of paragraph 22(4), a direction is "in force" only when the detainee is notified of it, and not before. Mr Dolan also relied on some words of Patterson J in Wamala v Home Office [2014] EWHC 2039 at [48] and [50], a case where no notification of removal directions was given to the relevant detainee because no relevant directions had been made. Patterson J did not decide in that case that where a removal direction is made, it must be "set and served on the detainee" in order to be valid.
27. In her submissions on behalf of the Secretary of State Miss Thelen submitted that written notification of removal directions does not have to be served on the detainee before the directions can be "in force" for the purposes of paragraph 22(4). In support of that submission she showed me some of the administrative documentation underpinning the operation of the removals system. She wanted to demonstrate that the procedures do not envisage written notification of a removal direction always being given to the individual who is to be removed. No doubt she was correct about that, and it was helpful to be shown the procedures. But the content of the guidance manuals does not govern the legal position. The guidance should be consistent with the law; the law is not to be found in the guidance.

Discussion

28. In my judgment the claimant's case is incorrect.
29. Refusal of release on bail, despite the decision of the First-tier Tribunal, was the consequence of the administrative decision of the Secretary of State. This was the second part of the two-stage process described in Roszkowski. The existence of the respondent's power is conditional. If the conditions are not satisfied the Secretary of State has no power to withhold consent so as to prevent release. The claimant alleges that the decision of the Secretary of State to refuse consent was irrational or unauthorised because the removal directions were not "in force" for the purposes of paragraph 22(4) until they were "set and served " and therefore that the Secretary of State is liable for wrongful imprisonment of the claimant.
30. In the absence of a question of entitlement or status such as arose in Anufrijeva, in my judgment, relevant directions are "in force" for these purposes if they have been made (and not withdrawn) and if they require the detainee to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.
31. As Roszkowski shows (see McCombe LJ at [42]), in a case where consent is relevant, the consent of the Secretary of State can be given or withheld on any grounds relevant to the particular case which amount to a rational disagreement with the tribunal judge's conclusions. Examples might be the detainee's immigration history, the risk of future failure to surrender to custody, lack of reliable sureties, lack of an appropriate address, and so on.
32. There is no requirement in paragraph 22(4) for the removal directions referred to, if otherwise valid, to have been "set and served" on the detainee before the Secretary of State may refuse consent to release. If removal directions have been made for removal of the detainee within 14 days, and have not subsequently been withdrawn or cancelled, the Secretary of State (acting rationally) is entitled to refuse.

Conclusion

33. Accordingly, in my judgment the claimant's challenge to the lawfulness of his detention prior to removal to Pakistan is not made out. This application for judicial review is dismissed.