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
		2 May 2018

Mr Jonathan Swift QC :

A. Introduction

1. The Claimant, Raliatu Musah-Eroje, was detained by the Secretary of State between 14 March 2017 and 14 April 2017, pending removal from the United Kingdom. In these proceedings the Claimant challenges the legality of that detention. The Secretary of State's position, in summary, is (a) that the detention was unlawful from 15 March 2017, the date of the first detention review, until 14 April 2017; but (b) that the initial detention, on 14 March 2017, was lawful. The Secretary of State further contends that any award of damages for unlawful detention should be no more than a nominal award. In this judgment I will address first, whether the detention of the Claimant was lawful or unlawful, and second, if the detention, or any part of it, was unlawful, whether the award of damages should be only an award of nominal damages.

B. The facts

2. The circumstances material to this claim may be summarised as follows. The Claimant is a Nigerian national. On 28 February 2015 she was granted entry clearance as a Tier 5 Charity worker, valid until 15 March 2016. On 15 March 2016, the Claimant applied for further leave to remain as a Tier 5 charity worker. That application was refused, by a decision of 8 April 2016. Under the provisions of the Points Based System, the maximum period for such leave is 12 months, and the Claimant had already had the benefit of that period of leave. On 27 April 2016 the Claimant, as she was entitled to do, applied for an administrative review of that decision. The outcome of that review – in a decision dated 25 May 2016 – re-stated the decision to refuse the application for further leave to remain.
3. On 3 June 2016 the Claimant contacted the Home Office saying that she wished to return to Nigeria voluntarily. By this time the Claimant did not have her passport, as it had been sent to the Home Office in support of her application for further leave to remain and (in accordance with the Home Office's usual practice), had been retained by the Home Office when that application for leave had been refused. The Claimant spoke to the Home Office twice on 3 June 2016. The upshot of those conversations was that the Claimant said that she wanted to leave for Nigeria the same day; she said she had made arrangements to do so; but she was told that that would not be possible for her to leave that day because the Home Office required three days notice to make arrangements for her passport to be available to her at an airport.
4. The Claimant then made further arrangements for a flight to Nigeria, this time leaving on 17 June 2016, from Gatwick Airport. However, when the Claimant arrived at the airport she was not able to catch her flight as planned, because her passport was not available for her. The upshot of events on 17 June 2016 was that the Claimant had incurred the cost of the flight ticket, and travel to the airport; and all that was wasted expense.
5. In an email dated 22 June 2016, the Home Office accepted that a Home Office contractor had mislaid the Claimant's passport. The Home Office apologised, and agreed to meet the cost of a flight for the Claimant to Nigeria. In an email sent on 20 July 2016, the Home Office offered the Claimant a choice: either she could make her own flight arrangements (in which case she would be reimbursed for the cost of the 17 June 2016 plane ticket); or the Home Office could arrange a flight for her with Arik Air. The Claimant chose to make her own arrangements because the baggage allowance with Arik Air was significantly less than she needed, and significantly less than the baggage allowance available to her had she been able to leave on the 17 June 2016 flight.
6. The Claimant booked a ticket on a flight to Nigeria scheduled to leave at 22.40 on 7 October 2016, from Heathrow Airport. On 3 October 2016 removal directions were set for the Claimant on the basis of these flight arrangements, for her to leave the United Kingdom on 7 October 2016.
7. As events turned out, the Claimant did not board the 7 October 2016 flight and did not leave the United Kingdom that day. The Claimant arrived at the airport in time for the flight, but was not able to obtain her passport. There is some dispute as to why this was so. The Claimant's evidence is that on arrival at the airport she followed the instructions she had been given, called the number she had been told to call, went to a check-in desk, waited where she was told to wait, and then made further inquiries of airport staff, before being told that her passport could not be found. The Home Office record suggests that on arrival at the airport the Claimant did not follow the instructions she had been given. However, that record is brief, and is not supported by any witness evidence. I accept the Claimant's evidence as to what happened at the airport on 7 October 2016. Not only did she give the same account of events when contacted by the Home Office the next day, but in letters dated 13 October and 28 October 2016 her solicitors also made materially the same points when complaining about the treatment she had received and raising a claim for compensation. There does not appear to be any doubt at all that the Claimant did go to the airport on 7 October 2016 and did report to the check-in desk. Thereafter, when she asked where she needed to go to reclaim her passport, she was given a series of different instructions. As it turned out, none of these instructions was correct. But that does not reflect adversely on the Claimant. She acted properly and reasonably. To my mind the only thing that is remotely odd about what happened on 7 October 2016 was that it was not possible to make arrangements to give the Claimant her passport when she checked-in for her flight. At this time there was no reason to doubt that the Claimant wanted to leave the United Kingdom. By this time she had made arrangements to leave on three occasions (3 June, 17 June and 7 October); and that being so I fail to see why more straightforward arrangements could not have been made to get the Claimant's passport to her.
8. No response was provided to either of the letters of complaint until 15 November 2016. That letter did no more than say that the letters had been "passed to ... [the] ... ex gratia team for further investigation ...". No substantive response was provided until 2 February 2017.
9. In the meantime, by letter dated 21 October 2016 the Claimant had been instructed to report to Lunar House in Croydon on 2 November 2016 and thereafter once a month on the first Wednesday of each month. This was an IS.96 letter, and also imposed a residence requirement on the Claimant. The Claimant did not report on 2 November 2016. Her witness statement does not explain why she did not report, save to refer to a letter before claim written sometime later (on 23 December 2016). As a result of this failure to report, the Home Office file records that on 7 November 2016 the Voluntary Departures Co-ordinator reached the conclusion that the Claimant "has no intention to depart the UK voluntarily at this time", and her case was reassigned to the Case Closure team. There is no record that the Claimant was told that her case was no longer regarded as one of voluntary departure. On 28 November 2016 the Home Office wrote to the Claimant in respect of her failure to report on 2 November 2016, and reminded her that she was next required to report on 7 December 2016. A further letter dated 28 November 2016 gave notice of removal, and informed the Claimant that she was at risk of removal from the United Kingdom during the period until 27 February 2017.
10. The Claimant did not report as required, on 7 December 2016, and on 15 December 2016 the Home Office wrote to her, again, reminding her that she needed to report, and informing her that she should next report on 4 January 2017.
11. On 23 December 2016 the Claimant's solicitors sent a letter before claim challenging the decision to require the Claimant to report each month. The letter contended that the requirement was unnecessary, and stated that the Claimant wished to travel to Nigeria on 8 January 2017, or as soon after as her passport was provided to her. The letter also referred to the complaints made by the Claimant in October 2016 and to the fact that there had been no substantive response to those complaints. The response to the letter before claim was dated 3 January 2017, and was to the effect that the Claimant did not have extant leave to remain, and that in those circumstances the Home Secretary was permitted to impose reporting requirements. The letter also stated that if the Claimant wished to leave the UK she should contact the Home Office Voluntary Departure Service.
12. On 4 January 2017 the Claimant reported as instructed. On the same day she received a further IS.96 letter re-stating her reporting and residence requirements. A further IS.96 letter was sent to the Claimant on 24 January 2017 which required her to report on 14 February 2017, and thereafter each fortnight. The Claimant did report 14 February 2017, and thereafter, as required.
13. As I have mentioned already, the substantive response to the Claimant's complaints about what had happened on 7 October 2016 was provided by letter dated 2 February 2017. Put shortly, that letter rejected the Claimant's complaints about what had happened on 7 October 2016, and her claim for compensation arising out of those events. The letter stated that the Home Office records were to the effect that the Claimant's passport had been ready for collection that day but that the Claimant did not contact the Returns Logistic Team or present herself at the Returns Desk. The letter also stated that it remained open to the Claimant to leave voluntarily and that if she wished to do so she should contact the Voluntary Departures Team. The Home Office record for 14 February 2017 (when the Claimant reported in accordance with the reporting condition) is to the effect that she was asked about voluntary departure but said that she did not want to pursue voluntary departure " ... until JR is outcomed" (sic). By that time no claim for judicial review had been commenced, and I assume that the "JR" being referred to is the claim threatened in the 23 December 2016 letter before claim.
14. It is apparent from the Home Office records that by 8 March 2017 a decision had been taken to detain the Claimant with effect from 14 March 2017 (the date she was next due to report). When the Claimant reported on 14 March 2017 she was detained.

C. Decision

15. The Secretary of State's powers under the Immigration Act 1971 to detain person's subject to immigration control, pending their removal from the United Kingdom, and her power under section 62 of the Nationality Immigration and Asylum Act 2002 to detain persons who are subject to removal directions, for the purpose of removal, are not in dispute. Nor is it in dispute that the Secretary of State is required to exercise that power in accordance with her published policy, set out at Chapter 55 of the Enforcement Instructions and Guidance document ("EIG"), provided to Immigration Officers. Finally, it is not in dispute that that any detention must be consistent with the well known Hardial Singh principles – i.e. it must be only for the purpose of removal, the power to detain is limited to such period as is reasonably necessary to secure removal, and that the Secretary of State is required to act with all reasonable expedition to ensure that the steps necessary to remove a person who has been detained are taken within a reasonable time (see R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704, per Woolf J at 706D – 707F).
16. The contents of Chapter 55 EIG are well known. So far as material to this case, I note the following. There is a presumption in favour of temporary admission or release. A decision to detain must be supported by "strong grounds for believing" that the person will not comply with conditions such as reporting conditions. Each case is to be considered on its own merits, and all reasonable alternatives must be considered before a decision is made to detain. See generally, §55.3 EIG. At §55.3.1 the EIG states that when deciding whether or not to detain, "all relevant factors must be taken into account". A non-exhaustive list follows. This includes consideration of the likely timescale for removal; whether there is any evidence of previous absconding; any previous history of compliance or non-compliance with immigration control requirements; whether the person concerned has relevant ties to the United Kingdom (such a close relatives, etc.); and whether there are any matters which might make it more likely that the person will comply with conditions for release, such as on-going claims or legal proceedings.
17. The Claimant was detained on 14 March 2017. The decision to detain her was reviewed on 15 March 2017, 20 March 2017, 28 March 2017, and 10 April 2017. The outcome of each of the reviews was to maintain the decision to detain. The Claimant's detention came to an end on 14 April 2017. The reasons for the decision to release the Claimant are not entirely clear. However, by that time the Claimant's solicitors had sent a further letter before claim (dated 16 March 2017) challenging various matters including the decision to detain the Claimant.
18. In this case the Home Secretary admits that with effect from 15 March 2017 the Claimant's detention was unlawful. This admission is made on the basis that the detention reviews, starting with the review on 15 March 2017 failed to take into account that by 14 March 2017 the Claimant had attempted to leave the United Kingdom voluntarily. On this point, the Secretary of State's position was that the Claimant had attempted to leave on 17 June 2016, but had not "genuinely attempted to leave" on 7 October 2016.
19. The Detention Review form for the 15 March 2017 review of detention included the following:

"6. Previous immigration compliance and non compliance

The subject is considered high risk to abscond as the subject had failed to regularise her stay in the UK. The subject had no outstanding applications and a lack of family ties in the UK all of which create a risk of absconding. The subject has shown a complete disregard and inability to comply with UK immigration laws. Therefore there is nothing to suggest that the subject will comply with reporting restrictions.

...

14. Recommendation (whether to maintain detention or release, supported by reasons).

The subject has failed to regularise her stay in the UK. The subject has no outstanding applications and a lack of family ties in the UK all of which creates a risk of absconding. The subject has shown a complete disregard and inability to comply with UK immigration laws. Therefore there is nothing to suggest that the subject will comply with reporting restrictions.

I recommend that detention remains appropriate whilst awaiting the subject's removal from the UK."

The comments at paragraph 6 of the 15 March 2017 detention review were repeated in the 20 March 2017 review, the 28 March 2017 detention review and the 10 April 2017 detention review. In terms of the reasons for the recommendations made at each of these reviews, on 20 March 2017 detention was recommended because the only barrier to removal was a pre-action protocol letter (the letter sent on 16 March 2017), and the 28 March review recommended detention continue stating the same reason. By 10 April 2017 the Claimant had commenced the present proceedings. The review on that day recommended that detention continue because the Claimant would be able to be removed once that claim had "been cleared".

20. In my view the Secretary of State is clearly right to concede that by 15 March 2017 the Claimant's detention was unlawful. However, my conclusion is that the detention was not unlawful simply because no account had been taken of the Claimant's attempts (or on the Secretary of State's case, attempt) to leave the United Kingdom voluntarily. Rather, it is clear from the detention review documents, that on each detention review, the assessment of the risk that the Claimant would abscond was fundamentally flawed. Clearly, it was material that the Claimant had attempted to leave the United Kingdom voluntarily. That ought to have been taken into account when assessing the likelihood that the Claimant would comply with reporting conditions such that temporary admission would be a reasonable alternative to detention. But that is not the end of the matter.
21. The assessment at paragraph 6 of the 15 March 2017 review (set out above), which was repeated on each subsequent review form, and which was the basis for the assessment of the risk the Claimant would abscond, simply bears no relation to any measured assessment of the facts of the Claimant's case. Although the Claimant's Tier 5 leave to remain had expired, within days of the refusal of her application for review, the Claimant attempted to leave the United Kingdom. She then tried again on 17 June 2016, and for a third time on 7 October 2016. As late as 14 February 2017 the Claimant is recorded (on the Home Office record) as saying that she wanted to leave voluntarily subject to pursuing her claim to be compensated for the events of 7 October 2016. Against this background, the assessment that "... the subject has shown a complete disregard and inability to comply with UK immigration laws ..." is not warranted at all. Likewise, although it is true that the Claimant had failed to report as instructed in November 2016 and December 2016, she had reported on 4 January 2017 and on all subsequent occasions, including on 14 March 2017. This being so, and taking account also of the on-going dispute as to what had happened on 7 October 2016 and whether the Claimant should be compensated for those events, I do not consider that it was right to conclude (as the detention reviewer did conclude) that "... there is nothing to suggest that the subject will comply with reporting restrictions". In fact the position was to the contrary: the Claimant had reported in January, February and March 2017, and she had made it clear that she wanted to pursue a claim for compensation against the Home Office. All these matters suggest that the Claimant would be likely to comply with reporting restrictions. Lastly on this point, I do not entirely understand the reference to "lack of family ties in the UK" given that on the same form (at paragraph 10) it is recorded that the Claimant lived with her brother (and his wife and children), and that her brother financially supported her. Once again, these matters do not suggest a risk of absconding; they tend to point in the opposite direction.
22. What then about the detention on 14 March 2017? Although the Secretary of State seeks to draw a line between lawful detention on 14 March 2017, and unlawful detention from 15 March 2017 until the Claimant's release on 14 April 2017, I can see no reasoned or principled basis on which any such line can be drawn.
23. There are three pieces of documentary evidence relevant to the decision to detain, and to what happened on 14 March 2017. The first is the information on the Home Office record for 8 March 2017. This records the decision to detain to be effected on 14 March 2017. It refers to statements made by the Claimant when she reported on 14 February 2017 when she referred to her previous attempts to leave the United Kingdom, and said that she intended to pursue a claim (not further explained, but I infer in respect of her claim for compensation arising out of events on 7 October 2016), and her intention not to leave voluntarily until after that claim had been resolved. The entry then records the risk of absconding as "not known", and then includes the following:

"What alternatives have been considered for detention? Subject has been offered AVR, several weeks ago & has not contacted voluntary returns. Reasons for recommending detention: Case was referred at tasking & AD accepted it"

What is significant here is that the risk of absconding is not known, and that the information recorded in response to the question about alternatives to detention, is not actually any answer to that question. The fact that the Claimant had not (since February 2017) pursued voluntary removal, in the circumstances, says nothing as to the need for detention pending forced removal.

24. The second document is the notice given to the Claimant on 14 March 2017 when she was detained stated the reason for detention as "You have previously failed or refused to leave the UK when required to do so". The pro-forma language (the document is a "tick the box"-style document) does not capture the substance of the Claimant's circumstances. It is true that she was a person who had failed voluntarily to leave the United Kingdom, but the circumstances of those attempts are material, and in my view make it clear that it cannot properly be inferred from what happened on 6 June, 17 June and 7 October 2016, that it was necessary to detain the Claimant pending her removal from the United Kingdom.
25. The third document is a Minute Sheet that records what happened on 14 March 2017. This document needs to be read together with one of the entries in the Home Office record for 14 March 2017. The Minute Sheet includes the following:

"Subject was vocal about being detained and stated that she had attempted to leave the UK on 3 occasions and that it was the Home Offices (sic) fault. I advised her to speak to her solicitor, stating that currently there are no barriers for her to be detained and removed from the UK.

...

Referred to HEO Morra – detention authorised."

HEO Morra's decision is recorded further in the Home Office record for 14 March 2017, which is as follows.

"Risk assessment agreed as low on the available evidence. The subject has a poor history of compliance having overstayed her LTR. She applied for further LTR as Tier 5 Charity Migrant on 15/03/16 which was refused on 08/04/16. Her request for administrative review was completed on 25/05/16 where the decision was maintained. The subject should have left the UK at this time. She made 3 failed attempts at voluntary departure subsequently. The subject has three failed attempts at voluntary departure during 2016. Most recently she she did not present herself at the returns desk at the airport to collect her passport following check in. She was served with a RED.01 on 28/11/16 notifying her of liability to removal but has made no attempt since to leave the UK or put a further application in to regularise her stay in the UK. The subject logged a PAP on 23/12/17 in a bid to frustrate removal and now states she wishes to pursue a JR and does not wish to pursue Vol dep until JR is concluded. No JR on CID as of 14.03.17. It is clear from the subject's previous behaviour that she does not wish to vol dep. In view of the above, i am not satisfied that she would comply with T/R with removal imminent. Detention is appropriate to effect removal on the [words redacted] charter on 28 March 2017. Sophia Morra A/HEO" (sic)

26. When considering this material I have in mind two matters. The first is that where the claim is a claim of unlawful detention, the court decides the issue of legality for itself; the issue is not whether the Secretary of State had reasonable grounds for concluding that detention was lawful. The second matter is that Chapter 55 EIG states that "all reasonable alternatives to detention must be considered before detention is authorised". The documents that evidence the decision to detain the Claimant do not make good a case for detention that is consistent with §55.3 EIG. Taken at its highest, the information in the Home Office record for 8 March 2017 makes good the case for removing the Claimant from the United Kingdom. By March 2017 the Claimant was an over-stayer, and her attempts to leave the United Kingdom had not been successful. But it is clear to me that the information available at that time did not support a decision to detain consistent with the requirements set out in §55.3 EIG. The circumstances of the Claimant's unsuccessful attempts to leave the United Kingdom do not support any inference that the Claimant would be likely to abscond if not detained. The most that could be said against the Claimant in this regard was that when she reported on 14 February 2017 she stated that she was not interested in voluntary removal until her claim for compensation had been addressed. This does not support a conclusion that the Claimant would be likely to abscond.
27. The same points apply to the reasons relied on 14 March 2017 by A/HEO Morra when she authorised detention. The reasons relied on do not support a decision to detain that is consistent with the Secretary of State's policy. As I have already said, the Claimant's statement about not wanting to pursue voluntary departure must be considered in the context in which it was made. In that context, it is not a statement that says anything to support the conclusion that there was a material risk that the Claimant would abscond if faced with the prospect of removal pursuant to directions. The assessment of the 23 December 2016 pre-action protocol letter as a "bid to frustrate removal" is on my view flawed; it is a further instance of events being taken out of context. The pre-action letter was closely linked to the claim for compensation made by the Claimant in October 2016 (following the events of 7 October 2016). To consider the letter – as A/HEO Morra appears to have done – as some form of ploy comes, so far as I can see, to little more than wishful thinking.
28. Drawing these matters together, my conclusion is that the Claimant's detention on 14 March 2017 was unlawful; it was not in accordance with the Secretary of State's stated policy.
29. The final matter to consider is the Secretary of State's contention that although the Claimant's detention was unlawful, she ought only to be entitled to nominal damages. The Secretary of State accepts that the detention reviews failed to take into account the Claimant's attempts to leave the United Kingdom, and failed to take account of the Claimant's family ties in the United Kingdom. This (contends the Secretary of State) rendered the reviews unlawful, and in turn rendered the detention unlawful. However (continues the argument), the fact that the detention was unlawful by reason of the unlawful detention reviews is not such as to render the Secretary of State liable to anything more than nominal damages.
30. In this regard, Miss Idelbi, who appears for the Secretary of State relies on the judgment of the Supreme Court in R(SK(Zimbabwe)) v Home Secretary [2011] 1 WLR 1299. In that case the claimant contended that his detention was unlawful because there had been a failure to carry out regular detention reviews contrary to the provisions of the Detention Centre Rules 2001. That claim was upheld by the Supreme Court. The Court concluded, among other matters that while a failure to review, contrary to published policy and without good reason was an error which bore on the legality of the detention, if the Secretary of State could demonstrate that if the reviews had been carried out the detention would (lawfully) have been maintained, that could be relevant to the quantum of damages: see, for example per Lord Hope at §55, Baroness Hale at §74, and Lord Kerr at §89.
31. I do not consider that those passages in the judgments in SK Zimbabwe have any application on the facts of the present case. The present case is not one in which the Secretary of State has been able to demonstrate that had account been taken of the Claimant's attempts to leave the United Kingdom and her family ties in the United Kingdom, the decision to detain would have been lawful – i.e., in accordance with her own policy. My conclusion on the facts of this case is quite to the contrary. As I have explained above, the fact that the Claimant had attempted to leave the United Kingdom on three occasions (on each occasion being prevented from doing so because the Secretary of State either could not or did not provide the Claimant with her passport) is a matter directly relevant to assessment of the risk that the Claimant might abscond in the face of removal directions, and thus directly relevant to the question whether it was necessary to detain the Claimant pending removal from the United Kingdom. The existence of family ties was also directly relevant to assessment of the risk the Claimant might abscond. For the reasons I have already set out, the Secretary of State has not been able to satisfy me that taking those matters into account, the Claimant's detention was, at any time from 14 March 2017 to 14 April 2017, in accordance with her policy. The detention was therefore unlawful.

D. Conclusion

32. For these reasons, I conclude first, that the Claimant was unlawfully detained from 14 March 2017 until her release on 14 April 2017, and second, that this case is not one in which the Claimant's measure of recovery is limited to nominal damages.
33. When this judgment is handed down I intend to give directions so that the damages payable to the Claimant consequent on her unlawful detention, can be determined. I would be grateful to receive submissions from the parties as to what those directions should be.