QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| R (JONAS LAUZIKAS)
|- and -
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
(instructed by Lupins Solicitors) for the Claimant
JACK ANDERSON (instructed by Government Legal Department) for the Defendant
Hearing dates: 21-23 February 2018
Crown Copyright ©
MICHAEL FORDHAM QC:
PART ONE: THE FACTS
Stage 1 (27 January 2015)
Stage 2 (from 28 January 2015)
Stage 3 (from 25 February 2015)
Stage 4 (from 11 March 2015)
PART TWO: THE LAW
Some general principles
i) Lord Dyson was discussing different types of "breach of a rule of public law" in impugning a "purported lawful authority to detain" (§66). He was addressing the Secretary of State's arguments as to "the nature and extent of the public law error", and considering the example of "a decision to detain made by an official one grade lower than that specified in the detention policy (but which is otherwise unimpeachable)" (§67).
ii) Lord Dyson was disagreeing with a minority approach which preferred a "more demanding test of the wrongful exercise of statutory power amounting to an abuse of power" (§69). That would have been a sub-category of public law breach, characterised by its serious and substantive nature.
iii) Lord Dyson saw "in principle no difference" between ultra vires detention and detention which was unlawful "because the decision to detain was made in breach of a rule of public law" (§66). That gave "the correct and principled approach" (§68).
iv) Lord Dyson articulated the What-Breach Principle as follows (§68): "the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain.". He continued: "Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. They are not capable of affecting the decision to detain or not to detain".
v) In the subsequent case of R (Kambadzi) v SSHD  UKSC 23  1 WLR 1299 Lord Hope spoke (at §41) of "a breach of public law which bears directly on the discretionary power" and Lord Kerr spoke (at §80) of "an adequate connection between compliance with the duty and the lawfulness of the detention" and (at §88) "a public law error that bears directly on the decision to detain".
Question 1: Individualised proportionality and necessity (Article 27.2 standards)
Question 2: Flawed distinct decisions rendering detention unlawful
i) A public law error in a distinct decision (eg. to make or not revoke a deportation order) can render detention unlawful. This proposition is supported by Sullivan LJ's recognition (at §60) that there "will be some cases where there was a breach of a rule of public law in the process of making the decision to make the [deportation] order, where the nature of the breach will have been such as to render the detention unlawful"; and by the outcome in Draga where non-revocation of the deportation order in reliance on the cessation 'device' was "a public law error in the decision making process which renders the detention unlawful" (§72) from 1 January 2010 (§73).
ii) Not every allowable appeal would be a public law error rendering detention unlawful. This proposition is supported by Sullivan LJ's reasoning that: "the mere fact that an appeal has been allowed under section 82(1) will not mean that the decision to make the deportation order was unlawful in a way which was relevant to the decision to detain", because allowable appeals could be where "the Tribunal takes a different view as to the proportionality of an interference with the appellant's rights under article 8 of the ECHR, or because, with the benefit of further evidence, the Tribunal reaches a different conclusion as to the risk of persecution on removal, the application of a particular immigration rule, or the manner in which a discretion should have been exercised under the rules" (§60).
iii) The What-Breach Principle governs whether a public law error in a distinct decision (eg. to make a deportation order) renders detention unlawful. This proposition is supported by Sullivan LJ's analysis, having cited Lumba (at §52) and having observed that Lumba itself concerned challenges to decisions to detain (at §56), nevertheless asking of the "breach of a rule of public law" in the decision to make the deportation order: "did it bear upon, and was it relevant to, the decision to detain ?" (§57). That is what Sullivan LJ was addressing (§58: "I have not found this an easy question to answer") and answering (at §60: as to whether "the decision to make the deportation order was unlawful in a way which was relevant to the decision to detain").
iv) Where no public law error in the distinct decision (eg. to deport) was identified through statutorily-conferred appeal rights, that feature may mean none can subsequently be characterised as having rendered the detention unlawful. As it seems to me, this fourth proposition reveals the topic with which Draga was centrally concerned. The Court of Appeal was concerned that the public law error in the original decision to deport (and deportation order) had come to light only in a Court of Appeal decision on 26 June 2009, in a different case, the claimant's own appeal having been finally determined adversely to him by 26 October 2007, after which the Secretary of State had made the deportation order. In my judgment, what the Court of Appeal did was to adjust the application of the What-Breach Principle to apply to that specific context. As I have explained, Sullivan LJ had posed the question whether there was a breach of a rule of public law which bore on, and was relevant to, the decision to detain (§57). That was the question with which he was grappling (§58). He answered it in a way which he considered provided a principled fit with the primary legislation and its purpose. He emphasised "the statutory scheme" with its "two-stage process" whereby a deportation order could only be made once the claimant's appeal against the notice to make a deportation order had been finally determined adversely to the claimant (§§58, 61). He emphasised that "Parliament has established a comprehensive statutory scheme for determining the lawfulness of a decision by the Secretary of State to make a deportation order", and "in order to give effect to that statutory scheme" there was a "very strong case" for treating the outcome of the appeal as "determinative", in the interests of "finality" and "legal certainty" (§61). He considered that it would "frustrate the operation of the statutory scheme" if the Secretary of State could not rely on the outcome of the appeal (§62), or if a claimant who had brought no appeal at all could rely on a later decision of the Court of Appeal or Supreme Court which now made it clear that the original decision to make a deportation order had been made on an erroneous legal basis (§65). He concluded that the Secretary of State was entitled to rely on the lawfulness of the decision to make a deportation order as determined by the tribunal (§66). In my judgment, what Sullivan LJ was saying was this: no public law error should be characterised as bearing on the detention where none has been identified through the statutorily-interposed contemporaneous judicial safeguard for identifying such an error. That is why the analysis of the detention linked to the refusal to revoke the deportation order was different. There, the statutorily-interposed contemporaneous judicial safeguard had identified the public law error, which could therefore bear on the detention under the What-Breach Principle.
i) First, the Court of Appeal read Draga as being a case which had accepted that the What-Breach Principle was the relevant principle in play, when deciding whether a distinct decision in breach of public law renders detention unlawful. Arden LJ, for the Court of Appeal, explained that "Draga is a decision of this Court applying the recent decision of the Supreme Court in Lumba" (§9); "Draga turns on the decision in Lumba" (§10); "In Draga, this Court applied the decision in Lumba" (§17); "this Court's decision in Draga followed the law as explained by the Supreme Court in Lumba" (§34); "this Court in Draga was applying Lumba" (§38). As to the What-Breach Principle, Arden LJ describes this at §13 ("not every breach of public law was sufficient the breach had to 'bear on and be relevant to' the decision to detain") and §16 ("Critically, to give rise to a liability in damages, the public law error made by the Secretary of State had to be relevant to and bear on the detention").
ii) Secondly, the Court of Appeal recognised that Draga had concluded that there was, in making the deportation order, no public law error bearing on the detention because of the special feature that a statutorily-conferred appeal which should have elicited such an error had failed to do so (see §44(iv) above). The report records Arden LJ as saying (§34): "This Court [in Draga] concluded that the claim for damages did not bear on and was not relevant to the public law error which led to the making of the 2004 Order because the appeal from the detention order had failed". In my judgment, something has gone wrong in the transcription of this sentence. What matters is that Arden LJ is clearly saying that the "bearing on and relevant to" test (the What-Breach Principle) was not satisfied where an appeal had failed. That is what I take from it. I suspect that adjusted text, to convey the intended thrust of the sentence, could read as follows: "This Court [in Draga] concluded that the [public law error in the making of the deportation order] did not bear on and was not relevant to the [detention] because the appeal from the [decision to make the deportation] order had failed". I note that Counsel for the Secretary of State had put this point (§32) using this language: "the detention was lawful because the appeal was dismissed ".
iii) Thirdly, in DN (Rwanda) among the criticisms of Draga advanced by Counsel for the claimant is a point which I would express in the following way: (1) The Court of Appeal in Draga treated an adverse finally-determined deportation appeal as meaning there was no public law breach in the making of the deportation order, bearing on and relevant to detention. (2) However, where it is known to the Court having the function of determining the legality of the detention that there was such a public law breach in the making of the deportation order the previous appeal outcome is no basis for denying that conclusion. (3) Moreover, it is artificial to treat the existence or purpose of the statutorily-conferred right of appeal as denying what it would otherwise have accepted, namely that such a breach was one bearing on and relevant to the detention. In relation to this line of argument I note that among Counsel's submissions recorded in DN (Rwanda) were the points that: the statutory appeal provisions do not displace the "fundamental principle that it is for the courts to determine the legality of detention" (§27); and "the dismissal of the appeals against the deportation order did not break the chain of causation" (§29). As Arden LJ observed (§35), these and other points involve an argument that "Draga conflicts with fundamental principle" and "this Court should have interpreted Lord Dyson's test [in Lumba] more widely". But, said the Court of Appeal in DN (Rwanda), unless and until the Supreme Court decides otherwise, Draga stands as binding authority for that which it decides.
i) A public law breach in a distinct decision can render detention unlawful (Draga §§60, 72; Khan §88). Examples of relevant distinct decisions public law breaches in the making of which could render detention unlawful are: a refusal of leave to enter (Kullas); the refusal of a putative fresh claim (Hatega); the making of removal directions (Qader); the making of a deportation order (Draga) or a refusal to revoke a deportation order (Draga, Tsavdaris); or a decision assessing age (AA (Afghanistan) at §§44, 48).
ii) Not all public law breaches in making a distinct decision will render detention unlawful (Khan §88). Nor indeed do all public law breaches in a decision to detain render detention unlawful (Lumba §68). Nor will all grounds on which an appeal could succeed do so, remembering that some appeal grounds extend beyond public law error at the time of the decision (Draga §60). Examples of public law breaches which can render detention unlawful are: an error as to whether the individual is a person against whom removal action can be taken, where detention is for removal (Ullah); unreasonableness (Kullas; Hatega); the failure to follow statutory guidance in an age-assessment decision (AA (Afghanistan)); departing without justification from a tribunal's finding of fact (Qader). Examples which would not do so include: the taking of a different view as to the proportionality balance in the case of refusal of leave to enter (Kullas) or decision to deport (Draga §60). Depending on the circumstances, it may be appropriate to conclude that the detention was unlawful only from a particular point in time, such as the date of a review (Qader; Tsavdaris).
iii) The governing principle is the What-Breach Principle: whether the public law breach, in the distinct decision, is one bearing on and relevant to the detention (Draga §§57-58, 60; AA (Afghanistan) §44; TN §89; DN). Using historic or technical classifications of grounds for judicial review for this purpose would be unsupported by any clear principled basis (Draga §60; D §§120-121; Lumba §§66, 68).
iv) Special considerations may arise where no public law breach in the distinct decision was identified through a statutorily-conferred appeal. Special policy reasoning has been identified in that situation, and it has been considered contrary to the statutory purpose for a Court considering the legality of the detention to characterise a subsequently-recognised public law breach as one bearing on and relevant to the detention (Draga §§58, 61-62, 65-66; AB §68; DN §34). Whether that position will withstand scrutiny at Supreme Court level remains to be seen. It may not.
PART THREE: THE ANALYSIS
(1) No reasons at stage 1
(2) The absence of a decision at stage 1
(3) Proportionality and necessity (Article 27.2 standards): stages 1 and 2
(4) Proportionality and necessity (Article 27.2 standards): stages 3 and 4
(5) Hardial Singh 2: stages 2 and 3
(6) Unlawful certification: stages 3 and 4
i) I agree with Ms Dubinsky that a breach of public law, not limited to irrationality, in the making of a distinct decision can render the detention unlawful if the nature of the distinct decision and public law breach bear on the decision to detain or continue detention (§§36-54 above).
ii) I agree with Ms Dubinsky that IO Taylor's 24 February 2015 certification decision did bear on the decision to detain the claimant at stages 3 and 4 because it directly affected whether and how soon he could be removed. The detention was originally to effect an imminent removal, as it was put in the 28 January 2015 decision letter. The certificate was necessary for there to be any removal prior to appeal (so that appeal did not bar removal and undermine its imminence), as IO Zabardast recognised in the recommendation for the 25 February 2015 detention review. The time frame for removal was an important feature of the detention reviews and informed the decision to detain. Hardial Singh 3 requires no less. The same decision letter could, in principle, deal with the linked aspects: the decision to deport, the decision to certify under regulation 24AA, and the decision to continue detention in the light of deportation and certification. The link can be seen in the documents. One example is the reference in the Zabardast/Terry detention review of 25 February 2015 to the barriers to removal as excluding the appeal given certification.
iii) I agree with Ms Dubinsky that a misdirection in law, material to the certification, would in turn be a public law breach (in the distinct decision) which itself bore on the decision to detain.
iv) As is common ground, there was a misdirection in law in the certification because the question asked and answered by the Secretary of State (in the decision letter as in the relevant guidance) "focused erroneously on the question of serious irreversible harm and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act" (R (Kiarie) v SSHD  EWCA Civ 1020  1 WLR 1961 at §73(ii), endorsed at  UKSC 42  1 WLR 2380 §38).
v) It follows that the critical question is whether the misdirection in law in the certification, which the Secretary of State concedes was present in that decision, was material to the certification or whether it is clear from the decision read as a whole and the circumstances of the case that the Secretary of State would lawfully have certified on a correct approach in law.
vi) I agree, on the authorities, with Mr Anderson that the Court can properly conclude that the misdirection was non-material if the Court is satisfied "that the decision would have been the same if the correct approach had been adopted" (Kiarie CA at §74, the formulation of which was not doubted by the SC at §38), but with Ms Dubinsky that the Court should not do so where the Court "cannot say that those acting for the Home Secretary, if they had properly understood their task, would inevitably have concluded that pre-redress exclusion of the [claimant] would not be a breach of s.6 of the Human Rights Act 1998" (R (X) v SSHD  EWHC 1997 (Admin) at §151).
vii) I agree with Ms Dubinsky that the fact that the Secretary of State concluded in the same decision letter that deportation would not breach section 6 of the Human Rights Act 1998 does not of itself mean that lawful certification would follow: the question whether removal prior to appeal is proportionate is distinct, and different considerations arise, and were it otherwise certification would be automatic.
viii) I am quite satisfied that the decision of the Secretary of State as to certification would have been the same, and that those acting for her would inevitably have concluded that pre-appeal exclusion of the claimant would not breach s.6 of the Human Rights Act 1998.
(7) Unlawful section 4 refusal: stage 4
(8) Hardial Singh 3: stage 4
i) As is common ground, no Hardial Singh 3 issue arises in relation to stage 3. In particular, that is because the certification decision meant that an appeal would not be a barrier to removal. However, at stage 4 (from 11 March 2015) the circumstances were different because now there was a judicial review challenge to the certification decision, which constituted a barrier to removal.
ii) IO Holton's 23 March 2015 detention review decision dealt, in my judgment wholly convincingly, with the question of prospect of removal within a reasonable time. IO Zabardast's recommendation spoke of 3 months as an expected date of resolution of the judicial review challenge to certification. That time-frame would, in my judgment, have satisfied Hardial Singh 3. But it would need expeditious resolution of the judicial review. IO Holton recognised this. He identified the "need to ensure that this JR is expedited" so that deportation could "take place within a reasonable timescale", which it could if the judicial review were "dealt with quickly". Expedition was a real prospect at that stage. The acknowledgment of service was due on 30 March 2015. An oral (interim relief) hearing was in due course fixed for 31 March 2015, albeit not a permission hearing, as it was described in the case notes (31 March 2015). I am satisfied that there was that "need" for expedition, but there was as at 23 March 2015 the prospect of securing it.
iii) By the time of IO Foster's authorisation of detention at the 9 April 2015 review, the situation had changed. The opportunity had been missed. For reasons which are unexplained, the securing of expedition in the judicial review had not been followed up. The acknowledgment of service contained no request for expedition, nor were directions sought when the 31 March 2015 interim relief hearing was adjourned. Those circumstances in my judgment meant that it was now apparent, and ought to have been recognised, that removal could not take place within a reasonable time. There was a judicial review of the certification, which was a bar to removal, and its expedited resolution had not been secured. I have been able to identify no satisfactory answer to this.
iv) There is reasoning which is relevant to the point, but I find it unconvincing in the context of the continued administrative deprivation of liberty. The key phrase used in the 9 April 2015 detention review was this: "pending an adverse decision on the JR it is considered his deportation can take place within a reasonable timescale". I am cautious about subjecting a single sentence to penetrating scrutiny, but this is an important point, especially when the previous review had drawn attention to the significance of securing expedition. The reasoning is unsatisfactory and unconvincing. No deportation could take place "pending" a decision in the judicial review those proceedings were a bar to removal. Nor do I consider that a 'wait and see' approach could be adopted "pending" judicial review. What was there to 'see'? The judicial review was a bar to removal, proactive steps were necessary to pursue expedition, and the opportunity had inexplicably been allowed to pass by. Deportation could take place "depending" on whether the decision on the JR was "adverse", but the "reasonable timescale" would then depend on the timescale for final resolution of the judicial review proceedings. That, by now, was not being expedited. The perfect opportunity to do so had come and gone, and no other plan to achieve it was identified.
v) In my judgment it was apparent as at 9 April 2015, in the light of what had gone before and was now the case, that there was no longer a realistic prospect of removing the claimant within a reasonable time for the purposes of Hardial Singh 3, which principle was accordingly breached.