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Cite as: [2010] EWHC 1940 (QB)

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		Neutral Citation Number: [2010] EWHC 1940 (QB)
		Case No: HQ08X2861

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

28/07/2010

B e f o r e :

THE HONOURABLE MR. JUSTICE McCOMBE
____________________

Between:

	(1) HA and (2) N E (by his mother and litigation friend HA)	Claimants
	and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant

____________________

Miss Charlotte KILROY (instructed by Birnberg Peirce & Partners) for the Claimants
Mr. Jeremy JOHNSON (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 19-21 and 24-26 May 2010, Final documents and written submissions received on 20 July 2010
____________________

HTML VERSION OF JUDGMENT
____________________

The Hon. Mr. Justice McCombe:

(A) Introduction

This is a claim for damages for false imprisonment and for breaches of section 7(1) and (7) of the Human Rights Act 1998, brought by the claimants against the defendant in respect of their detention by the claimant from 5 to 25 January 2006. The defendant contends that the claimants' detention (the fact and period of which are admitted) was in exercise of lawful powers under the Immigration Act 1971, exercised in view of the imminent removal of the claimants from the United Kingdom.

The principal issue is whether the claimants' removal could or could not "reasonably be considered "imminent" " and therefore whether they were detained in breach of the defendant's policy on detention. For the defendant, it is not accepted that there was any material breach of policy nor that a breach of the detention policy necessarily causes detention to be unlawful. There are subsidiary issues with regard to the second claimant arising under Articles 5 and 8 of the European Convention on Human Rights.

The actions had been set down for trial on all issues of liability and damages. However, on the first day of the trial, I directed (in the end by common consent of the parties) that I should decide the issue of liability first, leaving over any question of damages for later determination, if necessary. I reserved the damages issues to myself (should they arise), but with permission to the parties to apply to the court to remove that reservation if it appeared to the court that it could no longer conveniently be maintained.

(B) Facts

The facts are relatively non-contentious. Where there is an issue, I make my findings on it in the course of the narrative below.

The claimants are citizens of Iran. They are mother and son. The first claimant's husband, who is the father of the second claimant, is GE; he is also Iranian. The second claimant was born on 7 January 2000 and is, therefore, now 10 years old. At the time of the relevant events he was aged five or six.

GE arrived in this country, without presenting himself to the immigration authorities, on 14 December 2000. He claimed asylum. The Statement of Evidence Form in support of the claim, dated 5/1/01, specified the claim as being based upon "religion". Expanding upon it, GE stated that his life was in danger from the Iranian authorities. He said his cousin had been killed in demonstrations; his brother had been arrested. He stated that he had been a wrestling champion in Iran but had been excluded from the national team owing to his family's problems with the government. He complained about that and said that, after losing control when making his complaint and hitting someone, he was arrested and beaten up. After hospitalisation he went to Qatar. On return he was arrested and detained for two months. He and his family were accused of anti-Islamic activity. Then, the claim states, he wanted to convert to Christianity and participated in Christian gatherings. The government became aware of this and he fled the country.

On 24 February 2002 the claimants presented themselves to the UK immigration authorities at Coquelles in France, seeking permission to enter the UK for a 5 day stay. They were refused leave to enter and, on that occasion, immigration officers took a copy of the first claimant's passport.

On 15 March 2002 the claimants arrived in the UK, also by clandestine methods. On 2 April 2002, solicitors already acting for GE, asked that they be added to the claim of GE as his dependants. In that letter the solicitors, a firm called Lawrence Lupin ("LL"), stated that the claimants had arrived in the country without travel documents.

On 1 September 2003 GE's claim for asylum was refused. On 4 September 2003 notice was given to the claimants that they were liable to be detained as illegal entrants and that it was proposed to give directions for their removal in due course. At about that time it appears that GE and (possibly) the claimants were given by the defendant a notice under section 120 of the Nationality Immigration and Asylum Act 2002 ("NIAA 2002") requiring them to state all their reasons in support of any claim for leave to enter or remain and/or for not being removed from the country. The notice to GE was supplied after the hearing; the notice to the claimants has not been produced but the papers contain a response to it by their solicitors, dated 10 September 2003, giving a statement of additional grounds relied upon by the claimants. That statement was in the following terms:

"Removing us from the U.K. would be a breach of Section 6 of the Human Rights Act 1998 as it would be incompatible with the following Rights in the European Convention on Human Rights as incorporated in Schedule 1 Part 1 of the Human Rights Act 1998:

1. Article 2 and 3 – Right to life & Prohibition of Torture and Inhumane Treatment

The Law should protect our clients' lives. Our clients fear for their lives in Iran because of the persecution they would suffer from the authorities. Our clients would suffer if they were returned to Iran due to their relationship to [GE] (they are respectively wife and son).

They would also be questioned and might be detained because they have left Iran to join [GE] in the UK.

2. Article 8 – respect of private and family life

Returning our clients to Iran would breach his rights under Article 8.

Other articles may be relied upon at a later stage."

By a decision made on 16 December 2003, promulgated on 30 December of that year, GE's appeal against the defendant's decision to refuse asylum and to give directions for his removal was dismissed by an Immigration Adjudicator, essentially on the basis that GE's account of his experiences in Iran had been fabricated. The determination made no reference to the matters raised in the claimants' statement of additional grounds served in response to the notice under section 120. There was, however, no further appeal.

On 9 March 2004, further representations were submitted on GE's behalf, with the claimants named as dependants to his claim, requesting that the representations be treated as a fresh application for discretionary leave to remain in the UK, relying (it seems) on Article 8 of the European Convention on Human Rights. No copy of those representations has been shown to me. However, the defendant's response to the application on 7 January 2005 rejecting the claim is available. Referring to rule 353 of the Immigration Rules, dealing with fresh claims, it was determined that the claim did not satisfy the terms of that rule. It seems that GE was contending that the application should be treated as a fresh claim on the basis of his presence in the country for over 3 years, his acquisition of community and family ties and his continued pursuit of his Christian religious beliefs. As I say, the defendant rejected the application.

On 28 June 2005 two immigration officers, Chief Immigration Officer Martin Merrell and Immigration Officer Rebecca Gridley, visited GE and the first claimant at their home in Southend. The second claimant was absent; he was probably at nursery school. The purpose of the visit, styled a "pastoral visit", was seen by the officers as a preparation for the family's eventual return to Iran. GE, the first claimant and those two officers, who had primary conduct of the case thereafter, were the only witnesses at the trial.

As part of the underlying purpose of the visit, the officers wanted to find out if the family had travel documents and, if not, to fill out application forms leading to the acquisition of such documents. Neither GE nor the first claimant could speak English at all well. Neither officer spoke Farsi nor was there an interpreter present. GE could apparently speak and understand sufficient English to enable some information to be gained by the officers. (Any information obtained from the first claimant on that occasion was through answers obtained from her through GE.)

The officers knew from enquiries that GE had submitted a birth certificate for the purposes of obtaining a driving licence; they knew also that the first claimant had had a passport, since (as already mentioned) a copy of it had been obtained when she was refused entry at Coquelles in 2002. GE told the officers that he had once had a copy of his birth certificate but that he had it no longer. The officers understood that the first claimant no longer had her passport, although they gained the distinct impression that both subjects were uncomfortable when answering questions about this passport. I accept that that impression was justified and that GE and the first claimant prevaricated in answering questions about the existence and/or whereabouts of the passport. Both GE and the first claimant co-operated in filling out "bio-data" forms but refused to help in completion of emergency travel document forms; they refused to be photographed.

On 21 September 2005 at 10 a.m., the same officers and two police officers attended the premises again, on this occasion with a warrant to carry out a search. GE and the second claimant, but not the first claimant, were present. The first claimant's Iranian passport was then found by Mr Merrell in the front pocket of a jacket or top hanging in a wardrobe in a ground floor room which was being used as a bedroom. In evidence before me GE claimed that he had volunteered assistance to the officers in finding relevant documents. This was denied by both the officers. Mr Merrell said that he asked GE why he had lied about the passport on the previous occasion; Mr Merrell said that GE refused to answer. In evidence, GE denied that he had lied then or at all.

In the defence in the action it is clearly pleaded by the defendant that the first claimant had lied about not having a passport. The point was not dealt with in the claimants' witness statements in the proceedings. However, at trial an explanation was proffered, for the first time. The explanation was that in June 2005 the passport had been with some friends of the first claimant in Belgium and had been returned subsequently, after the June visit by the immigration officers, to enable the first claimant to open a bank account. It was not suggested that the officers were told this in 2005. The first claimant was wholly unable to explain in her evidence why the passport had been left in Belgium in the first place and was unable to supply any substantial details of the person with whom it had been left or where in Belgium this person lived.

I am satisfied that this account about the passport having been in Belgium is entirely false and has been fabricated to cover up the inconvenient truth that GE and the first claimant (as alleged by the defendant) had lied about the matter in June 2005. I consider that it is also false that GE tried to help the officers to find the passport when they visited on 21 September 2005.

On the occasion of the visit on 21 September, GE was told by Mr Merrell that arrangements would be made for the family's removal from the country and that, if he did not have a passport, he should obtain one. That visit to the home which had begun at 10 a.m. concluded at 11.15 a.m.

On the same day, at 1.10 p.m., LL faxed to the Immigration and Nationality Directorate at Croydon further representations on GE's behalf. A "hard copy" of the same document appears to have been despatched on the following day. The representations also referred to enclosures – letters from a Mrs. Knowles and a Revd. V Hovsepian, photographs of GE and his family taken at protests outside the Iranian embassy in 2003 and a DVD of a similar demonstration in 2005.

It seems that the Croydon office had been the one with which LL had been dealing up to that time. However, enforcement matters had by then been passed to the defendant's unit at Stansted Airport, where Mr Merrell and Ms Gridley were based.

Without having had sight of the representations made by LL in September, which apparently had not reached them from Croydon, on 3 October 2005 the Enforcement Unit at Stansted, acting by Ms Gridley, wrote to GE and the first claimant notifying them that removal directions had been set for their removal to Iran on 26 October on a flight departing at 1140 hours. The letter also stated that if GE had any problems with regard to a travel document he should contact the writer immediately. On the same date, GE and the claimants were granted temporary admission to the country on certain conditions, which included a requirement to report at the airport on 26 October not less than 2 hours before the flight was due to depart.

This course of action seems to have been preceded by a plan reported by Ms Gridley to the Assistant Director (a Mr. Holgate) in the following terms (In the report "SCI RDs" = self check-in removal directions):

"PROPOSAL

As [HA]'s passport expires in 5 months we need to work reasonably quickly. I propose setting SCI RD's for all 3 family members giving them sufficient time for subject to go and apply for a passport. This will 1) focus their minds and 2) prompt any further reps.

If subject obtains a passport (highly unlikely) and the family fails to comply with SCI RD's I would like authority to arrange detention and RD's for the mother and son. I feel that we will have given the father sufficient time to obtain an ETD and any claims of breaches of article 8 can be easily rejected.

AUTHORISATIONS REQUIRED

The above course of action.

Setting of SCI RD's for all 3 members.

Detention of mother and son should SCI RD's fail. (Happy to apply for these authorities after SCI RD's are resolved).

Removal of mother and son without father."

The Assistant Director responded:

"All aspects of the above proposal are laid out authorisations required approved. Det of mother + son subject to update should SCI fail. I am satisfied all HRA aspects considered and that proposed action is entirely proportionate and lawful."

On 6 October 2005 LL wrote to the Stansted office stating that it appeared that it was not aware of the outstanding representations and enclosed a copy of the representations, but not of the enclosures sent with the representations. It seems that these papers were not seen by Ms Gridley until her return from a period of leave on 10 October. She then contacted a unit within the defendant's organisation called the "Operation Support Certification Unit" ("OSCU") which was responsible for dealing with the substance of the representations. The documents on Ms Gridley's desk were faxed to that unit on that day.

LL chased the Stansted office for a response to the September representations on 19, 21 and 24 October. LL's attendance note of the "chasing" call of 24 October is somewhat indistinct in the photocopy. However, the gist of the request was that the removal directions should be cancelled in view of their proximity in time and the continued absence of response to the letter of 21 September. The note records that the request for cancellation of the removal directions was refused and that LL were told that a response would be forthcoming and that the family were expected to check in for the flight when a response to the representations would be provided. LL recorded in their notes that they told the officer that they did not want to waste public funds seeking an injunction but would do so if necessary. However, no such application was made.

LL's attendance notes then record that on 25 October, the day before the intended removal, the Stansted office made a request for the DVD and the enclosures referred to in the September letter which, it seems, had not been seen by anyone in the defendant's organisation responsible for dealing with the representations. The solicitor, not surprisingly, expressed surprise at this.

A copy of the letter of 22 September and enclosures were duly sent by fax. The cover sheet repeated that LL had advised that the DVD had been sent to the Home Office and that there was no other copy; the recipient was asked to make urgent enquiries (i.e. within the Home Office) as to its whereabouts.

Later that day, as the notes record, LL were informed that a decision on the representations had been made, but without sight of the DVD. There was apparently some difficulty with the fax transmission and LL asked whether there had been a refusal and whether the removal directions still stood as they wished to consider the question of judicial review. LL were told that "it would be better if [they] saw the reasons…". The fax then appears to have gone through under the letter head of the defendant's "Immigration Service Enforcement and Removals Directorate". This rejected the representations that had been made and stated that the removal directions still stood.

Later the same day LL submitted further representations to the defendant, again asking that they be treated as a fresh asylum claim. The letter was based essentially upon the argument that GE's position as a returned asylum seeker would put him at further risk of persecution in Iran. It was supported by a new academic report (dated the same day and some 105 pages long), an article from The Guardian newspaper and a copy of the decision of the Asylum and Immigration Tribunal in AA (Involuntary Returns to Zimbabwe) [2005] UKAIT 00144 CG. Ms Gridley's contemporaneous note indicates that she was told by the duty officer at OSCU to fax the letter, but not the report to OSCU.

With the flight due to depart at 11.40 on 26 October, LL chased a response to that letter on that morning. It appears, however, that by then the solicitors must have known that the family were not going to check in for the flight anyway; they simply never intended to do so. It appears that a response rejecting the representations as a fresh claim was put onto the fax machine to go to LL at about 11.27. I was told that it was not in fact received by LL until about 12.15, half an hour after the departure time of the flight.

It appears that on 26 October LL had also intimated an intention to apply for Judicial Review. On 2 November Ms Gridley sent a fax to LL asking for sight of the grounds of claim and a Crown Office reference number. On 4 November Ms Gridley wrote to LL saying that in the absence of these materials she and her colleagues were in the process of re-setting removal directions.

On 9 November, Ms Gridley wrote an e-mail to Mr Holgate in these terms:

"Hopefully you will remember the saga of the Iranian family? (I attach my initial referral reference). Unsurprisingly the family did not comply with the self check in removal directions – instead we received 2 batches of representations on the day of the flight. These were both rejected in time for the flight but I believe they weren't even at the airport ready to go anyway! After the flight had departed we received notification for the reps that they wanted 5 working days to apply for a Crown Office reference. I faxed them on 02/11/05 (the day before the 5 working day deadline) asking for notification of the CO reference and a copy of the grounds. Nothing was received. I again faxed on 04/11/05 (the day after the deadline) advising that we would be re-setting the RD's. To date we have had no further communications from the reps. JRU have confirmed that no JR application has been received.

My proposal is:

To re-set RD's for the whole family

Get a date allocated through TCG to detain the mother and son.

Dad will then still have the option to go SCI (we will offer the usual arrangements i.e a taxi etc).

Forward a submission via the Regional Op Deputy Directors Secretariat for ministerial authority.

Authorisations required:

Authority to set RD's.

Confirmation that you are happy for me to proceed with this course of action.

No doubt either notification of the new RD's or detaining the mother and son will actually prompt reps to fulfil their threat of JR but I think we should keep on top this case to move it towards a satisfactory conclusion. Any queries please let me know."

The response was:

"I agree with the proposed course, rationale and thinking over likely ramifications, entirely reasonable and proportionate.

Thank you for such a full proposal."

No ministerial authorisation was obtained for this course of action and no submission for that purpose, as envisaged by Ms Gridley's e-mail of 9 November has emerged. It is the claimant's contention that failure to obtain Ministerial approval was a breach of the defendant's policy. I shall return to this issue later.

The thinking behind the request made to Mr Holgate is explained by Ms Gridley in her second statement in this proceedings, paragraphs 25 – 27 in these terms:

"Whilst we had tried to deal with the removal of the family together, [GE] had deliberately placed himself in a different situation to that of his wife and son.

As the Claimants had a passport (and no further documents were required for their removal as they were appeal rights exhausted ('ARE'), to effect removal, a decision was made to detain them. [GE] could not be detained as we had not found a passport during the search of his home address, should he have one elsewhere, say hidden with a friend, then he would need the opportunity to retrieve it. Should he not have one, then he needed an opportunity to be able to go to the Iranian Embassy to request a travel document from them. The paperwork for his asylum claim had shown that it was not believed that he had a genuine reason to fear returning to Iran or to the Iranian Embassy in the UK. Despite having the opportunity to answer the points in the refusal letter and provide more evidence at his appeal, the adjudicator had not found his account believable and had dismissed the appeal. Therefore it was reasonable to think that should he not have a genuine reason for fearing return to Iran, he may decide that to return with his family was better than risk having them sent back without him and he live here without them. In my opinion this should have been sufficient motivation for him to take whatever steps necessary to travel with his family.

CIO Merrell and I considered whether to detain [HA] alone, or with [NE]. Detaining [HA] alone was considered. Whilst this would mean that [NE] would not be detained and could attend the airport with his father for the removal it did not provide the same amount of pressure on [GE] to comply with the removal. Additionally, if [HA] alone was removed, given that she had [NE]'s travel document (her passport), it may actually be harder to obtain travel documents for [NE] as well, so he would potentially remain in the UK without his mother. We knew [GE] could obtain copies of his birth certificate as he had demonstrated, but we did not know with as much certainty that he could do so for [NE]. Clearly detention of children should always be kept to a minimum and effectively be used as a last resort. It was important to always consider [NE]'s welfare as a high priority. The First Claimant and [GE] had failed to co-operate with self check-in (which would have ensured the family were removed together). However, we were also aware that [NE] had been separated from his father for over eighteen months when his father came to the UK ahead of the Claimants. I was unaware to what degree [NE] had bonded again with his father but I had formed the impression that [HA] was the primary care giver, and it may cause more problems temporarily separating [NE] from [HA] than from [GE]. I knew from experience that the main impact factor for how children cope with any detention is how their parents cope and react. If the parents act reasonably and cope, then the children find it a fairly stress free experience. Therefore, being detained with [HA] was less likely to be a stressful experience. We also decided that to minimise the period of detention we would arrange flights for the day after detention. We also considered that should we detain [HA] without [NE], [GE] may still decide not to co-operate. In those circumstances [HA] may end up being removed along with [NE]'s travel document. We also considered that should [HA] and [NE] be detained and subsequently be removed without [GE], following their departure he would then have greater reason to arrange a travel document and follow his family back to Iran, than if [HA] alone was removed."

On 13 November, LL wrote a further letter to the Enforcement and Removals Directorate concerning GE's passport position. It appears that they tried to send this by fax, but used for the recipient an ordinary telephone number rather than a fax number: for some unexplained reason, it seems that they did not realise that the letter had, therefore, not gone through as intended.

The letter was, in effect, a rather belated response to Ms Gridley's letter of 3 October asking GE to make contact if there were problems about obtaining a travel document. It stated that GE no longer had the birth certificate and that the only time he had attended the Iranian embassy was for the purpose of protest outside the building. He therefore was not prepared to go to the embassy for the purpose of getting a travel document. This letter was not seen by the defendant's officials at any time before the detention of the claimants on 5 January 2006.

In the absence of communication from LL, Ms Gridley set about implementing the course of action authorised by Mr Holgate. The notes on the file revealed that delays in arranging escorts meant that there was no flight availability before the end of the year but that a booking was made for 6 January 2006. On 4 January 2006, Ms Gridley wrote to yet another department of the Home Office called "RFU" in these terms:

"I am planning to detain [HA] and [NE] (mother and son) tomorrow morning for removal the following day. [GE] is booked on the same flight and will be offered SCI RD's.

As you are aware you have the valid passport for [HA] which includes her son. We believe [GE] is either in possession of or can easily obtain ETD to return to his family. SCI RD's were originally set for the whole family on 26/10/05 so they are aware that removal is imminent. Should [GE] not attend for RD's A/AD David Holgate has authorised the splitting if [sic] the family.

The solicitors previously threatened JR but no grounds have ever been lodged."

A "Notice to Detainee" dated 5 January 2006 stated (in "tick box" form) that the claimants were being detained because their removal from the UK was imminent and that the decision to detain was on the basis that they had failed to comply with conditions of their stay, temporary admission or release; that they had used or attempted to use deception in a way that led the defendant to consider that they may continue to deceive and had previously failed to leave the UK when required to do so. As the facts already set out demonstrate, all these identified factors were correct. Removal Directions for all the family were set for a flight at 8.40 on 6 January.

On 5 January 2006 at 8.20 a.m., Mr Merrell, Ms Gridley, another immigration officer and two police officers attended the family's home at Southend, arrested the claimants and took them into detention. It is not necessary to go into detail at this stage as to the events of that visit, save to say that the first claimant was not co-operative and had to be persuaded by GE to go with the officers. There was, however, no force used.

By fax timed at 11.53, LL, noting the detention of the claimants and stating that they had had no response to their letters of 26 October and 13 November 2005, asked for assurance that no removal would occur before a response was made to these letters. The solicitors were, of course, wrong about the letter of 25 October; a response had been sent on 26 October at or about the time of the flight departure on that day. However, they were correct about the letter of 13 November, but (as already explained) this letter had never been received by the defendant. A copy of the missing letter was then sent by fax timed at 12.06. A factual error contained in Ms Gridley's letter of 3 October 2005, pointed out in the hitherto missing letter of 13 November, was acknowledged in a fax at 12.42 and a copy of the Removal Directions for the following day was sent to LL.

Further representations, accompanied by a further lengthy academic report (dated 6 January) relating to the treatment of Christian converts in Iran, were sent by LL to Stansted at 1759 hours on 5 January. These were sent by Ms Gridley to OSCU who (2030 hours) advised that removal directions should be deferred. The directions were cancelled accordingly.

It is important to record the terms of LL's letter of 5 January. Previous letters from LL, e.g. that of 13 November 2005, had been referenced to GE. This one was headed "Re [HA]" and read as follows:

"We write further to our recent telephone conversation with your office regarding the above named client.

We enclose herewith a report from Anna Enayat dated today and prepared in light of the decision of [sic] to remove this lady and her son to Iran tomorrow morning. The information that Ms Enayat has included in this report post dates the current CG case FS and others (Iran-Christian Converts) Iran CG [2004].

Although we appreciate that you have access to a wide range of reports, we do not believe this means that a report of this nature should not be considered.

However, as you do not wish to fax us any reports in this matter to which you would have access, we would refer you to the Human Rights Watch report of 15 December 2005 which confirms the points raised by Ms. Enayat at pages 10 and 11 of her report.

We would also refer you to the most recent country guidance case relating to the return of one women to Iran ZH (Women as Particular Social Group) Iran CG [2003] UKIAT00207 as this is, de facto what will happen tomorrow. As a result, this, in effect raises a fresh claim for asylum for [HA] and we would ask you to treat this as such.

Our client's application for asylum was made against a very different political backdrop. The situation in Iran continues to deteriorate and therefore, the situation of the client or his wife being returned to Iran should be reviewed accordingly.

We would ask that removal directions in this matter be suspended to ensure that the points raised in this report and the current human rights reports can be properly considered and a further decision be taken."

(It seems that the reference in the fifth paragraph to "one women" should have been to "lone women".)

By 7 January, Ms Gridley was aware that OSCU were intending to reject the new representations and that a response would be available shortly. The response was forthcoming on 9 January (dated 8 January) and was faxed by Ms Gridley to LL shortly after 11.30 a.m. on 10 January.

Again, the terms of the response are important. As noted, the letter of 5 January from LL was written as a "fresh claim for asylum for Mrs. [A]". The letter of 8 January was headed with the names of all three family members and proceeded to deal with the matter as a submission on behalf of GE "and his dependants". The only, perhaps oblique, reference in the letter to HA's individual position was in this paragraph:

"You also rely on the case of ZH Iran [CG] UKIAT00207 but it is unclear as to how or in what way you rely on this case to support your client's claim. Your client and his dependants are due to be removed together to Iran. Your client has exhausted his appeal rights and has no lawful basis to remain in the United Kingdom."

The letter proceeded to invoke rule 353 of the Rules and stated that the representations did not amount to a fresh claim under that rule; they were rejected accordingly. The claimants submit that this course was not open to the defendant as she had not previously made a claim. The defendants argue that she had made a claim, being that comprised in GE's claim which was rejected in 2003.

Ms Gridley states that, after receipt of the OSCU letter, she then set removal directions for 11 January 2006, at 07.30 from London City Airport. LL were informed of this by fax timed at 15.53 hours; it seems that seats on the flight had again been booked for all the family.

GE did not attend for the flight. There was, however, an attempted removal of the claimants. This was a very unhappy event and I do not intend to deal in detail with what happened. Suffice it to say, at the airport, the first claimant refused to comply; she was initially restrained and later taken to the aeroplane, still demonstrating reluctance, although not actively resisting. The captain of the aircraft declined to transport the first claimant in the state that she was. The claimants were then returned to the detention centre. It seems that Ms Gridley re-set removal directions for the following day for a flight from London Heathrow Airport at 1600 hours.

A detention review report was made on that day by yet another unit within the defendant's organisation, this time the "Management of Detained Cases Unit" ("MODCU"): the pro forma document (in a section entitled "Welfare Report") states, "No concerns known. See latest report attached". (No "latest report attached" to this or any of the detention reviews in this case has emerged in the proceedings.) The conclusion was that detention should be "maintain[ed] pending notification of RDs".

At 21.49 that day LL sent a further letter by fax to Stansted. The first two substantive paragraphs of that letter read as follows:

"We understand that our client was due to be removed today but the removal directions were not carried out. However, in the process of an apparent attempted removal, our client was physically and verbally assaulted and separated from her young son who has been traumatised as a result of witnessing the ill treatment of his mother and the fact that he was separated from her during this time. We write to formally lodge a complaint about this treatment and ask this to be investigated as a matter of urgency.

We also write to formally lodge a fresh application for asylum on behalf of [HA]. As she is now being removed in the absence of her husband, this material has not been considered before and, as the specific circumstances of her being removed with only her young child."

The letter proceeded to refer to a further academic report relating to custody and guardianship rights under Iranian law and pointed to dangers of the second claimant being removed from the first claimant's care on her return to Iran. The final two paragraphs of the letter stated this:

"We would also contend that our client's individual circumstances should be seen in the light of the information described in the FS determination. She will not receive any protection from her family or her husband's family because of her belief and her conversion; she is likely to lose custody of her son as a result of her conversion; her political activities in this country and her removal without her husband, should all be seen as "additional risk factors" as defined in paragraph 190 of FS.

We urge you to consider this application fully. These matters have not been considered before and are issues that must be considered before a further decision is taken with regards to her removal from the country. This is a very different application to the matters that have been raised in her husband's claim, particularly the issues relating to the risk of her separation from her son."

The reference to "FS" is a reference to FS and others (Christian Converts)Iran CG [2004] UKIAT 00303 and paragraph 190 of the judgment of the Tribunal (presided over by Ouseley J, the President (as he then was)) which stated as follows:

"A woman faces additional serious discrimination in Iran, though it falls short of being persecutory merely on the grounds of gender. But for a single woman, lacking such economic or social protection which a husband or other immediate family or friends might provide, the difficulties she faces as a convert are significantly compounded. Her legal status in any prosecution is much weaker; the risk of ill-treatment in any questioning is increased. This factor tips the overall nature of the treatment and risk into a real risk of persecution. We would regard NS as falling into that category; she is at a real risk of persecution for her religion, of treatment which breaches Article 3. The role of family as a source of protection should be examined carefully in individual cases. Similar support might also be provided by close friends or colleagues in employment."

Ms Gridley saw this letter on 12 January. She faxed it to OSCU at 11.05. It appears that she had first faxed copies of the removal directions for that day to the detention centre and to LL at 10.34. Again, a seat had been booked for GE. A further short letter, with a supporting letter from a Church Pastor of the Iranian Christian Fellowship, was faxed to Stansted by LL in support of her new claim.

During the morning of 12 January Mr Merrell called the defendant's "Detained Escorting and Population Management Unit" ("DEPMU") about the assault allegation. He was told that the matter would have to be referred to the police for investigation. He enquired whether the removal directions for that day needed to be deferred. He was told that they might need to be, but that was not certain. There ensued discussions with the police at Heathrow airport about the possibilities of a statement being taken from the first claimant. By 13.40 it emerged that it would not be possible for a statement to be taken that day. In the meantime, a response by OSCU to LL's representations dated 11 and 12 January, and rejecting the same, was received at Stansted. This was faxed to LL at 14.51, with a cover sheet stating that the removal directions had been cancelled to allow a police officer to see the first claimant and to take a statement concerning her allegation of assault on the previous day.

The letter of 12 January rejecting the representations summarised the new representations in the following terms:

"You state that your client left Iran illegally and therefore on her return she will be identified by the authorities as such and subjected to questioning with a view to prosecution. You have accepted that this in itself does not breach the threshold of persecution or ill treatment either within the UN Refugee Convention or under ECHR, but state that your client's child will be taken into the custody of her parental grandfather who is in opposition to your client and her family's alleged claimed conversion to Christianity."

The letter went on to say this:

"According to the Foreign and Commonwealth Office, in the case of returned asylum seekers it has been reported by observers that they had seen no evidence that failed claimants, persons who had illegally exited Iran, or deportees faced any significant problem upon return to Iran. You have not submitted any evidence to show that your client would face questioning, prosecution or imprisonment on her return. In addition it is noticed that your client has failed to raise the issue previously even though she has known for some time of the likelihood of her and her child being removed to Iran without her husband. It is noted that your client's husband is not being removed with her and their child at this stage simply because he is not co-operating with authorities over the issue of his documentation. It is considered that if your client had genuine fears about returning to Iran with her child, her husband would have made some attempts to travel with her.

You have stated that your client's father-in-law is opposed to her and her husband's conversion to Christianity. Neither your client or her husband has mentioned this previously either in the asylum application or at appeal. In fact at your client's husband's appeal hearing he stated that he had received money from his father in order to pay for his journey. It is considered that these actions are not consistent with someone who would be genuinely opposed to his son's beliefs.

Account has also been taken of the Adjudicator's determination of 30 December 2003 where he made clear finding of adverse credibility against your client's husband. At paragraph 17 he stated,

"I therefore believe that the Appellant has fabricated a story of wishing to turn to Christianity, and has kept up a small pretence in this country…"

In view of these findings it is not accepted that your client would face mistreatment on the grounds of her religious beliefs. The letter you have submitted from the Iranian Christian Fellowship dated 11 January have been taken into account but in view of the Adjudicator's findings it is not accepted that this substantially adds to your client's case. It is considered that your client's claimed fear of return is based upon issues that have already been considered and rejected within her husband's claim.

Furthermore it is considered that someone in genuine need of international protection would co-operate with the appropriate authorities of the country in which they are seeking refuge and it is clear that your client has not done so in this case. She was required to raise any grounds that she may have wished to rely upon at the earliest opportunity, instead she waited until the day before her removal before lodging an asylum claim. These are not considered to be the action of someone who is genuinely in need of protection."

The defendant then proceeded to certify the claim under section 96(2) of NIAA 2002, with the result that the claimants had no right of appeal against the decision.

Section 96(2) provides:

"An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-

(a) That the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement in response to that notice,

and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."

The claimants argue that that certification was unlawful as the first claimant had not previously made any asylum claim at all and the grounds now raised had not in any event arisen until 5 January and, if for no other reason this meant that it could not be said that the matter should have been raised in response to the Section 120 notice.

By the time the defendant's rejection of the representations were received by LL, the claimants had been taken to the airport for the proposed removal and Ms Gridley then informed those responsible at Heathrow that the removal had been deferred. Later that afternoon it emerged that the first claimant had been arrested for an alleged assault upon one of the escorting staff. After some time at the police station, she was released on bail back to the immigration authorities, with a view to returning to surrender to bail on 23 January.

The assault allegation against the first claimant raised, therefore, a further potential obstacle to the removal of the claimant. The records show that during the later part of 12 January, discussions took place between Mr Merrell and a Detective Sergeant about the possibility of no further action being taken so as to permit the removal to proceed, subject only to her giving a statement about the assault alleged to have been committed upon her on the previous day. Further removal directions were set for 1600 hours on 17 January.

On 14 January 2006, the claimants' present solicitors, Birnberg Peirce & Partners ("Birnbergs") came onto the scene for the first time when they wrote to the Stansted office of the defendant a letter for the attention of Mr. Merrell. This letter stated that the firm was acting for the claimants in respect of a civil claim arising out of the allegation of assault on the first claimant on 11 January and in respect of a claim by the second claimant "who was so traumatised by the circumstances of the attempted removals that staff at Yarl's Wood [detention centre] have referred him for counselling". Birnbergs also stated that it would be unlawful for the claimants to be removed pending the investigation of the claim. This letter was received at Stansted at 16.35 hours on 14 January.

At that point (9.49 a.m. on 16 January) Ms Gridley sought advice from the "Deputy Director's Secretariat" within the Home Office. At 10.36 she was told by that department to refer this time to the "Enforcement Policy Unit" ("EPU"). Ms Gridley forwarded the enquiry to EPU at 10.41 a.m. At 12.47 p.m. she received a reply which, after dealing with procedural matters relating to how Stansted should deal with the two solicitors' firms now acting for the claimants, gave this advice on the substance of the matter:

"Are the police investigating the alleged assault by an escort on Mrs. A? If so, removal should be deferred until a decision has been made by the police. Once this is known then RDs can be re-set (if that is the appropriate course of action). Removing someone from the UK i.e. the jurisdiction of the alleged assault, may look like we are trying to deny Mrs. A the opportunity to pursue her civil/criminal case, especially as the subject of the alleged assault was acting on behalf of the IS. If the police have concluded their investigation (or decided not to investigate) then their results can be reflected in the Article 6 letter (again see the attachments for further detail). "

At 16.40 that day Chief Immigration Officer Howard at Stansted informed Birnbergs by fax that no removal directions were in force and any decision on fresh directions would be taken in the light of notification of police action and notification by Birnbergs that they had lodged a civil claim.

On 17 January Mr Merrell continued to look for further advice and information from various sources. Ms Gridley records advice received from the Treasury Solicitor's department that "although the subject's reps are threatening us with civil action there is no reason why once they have conducted a medical report and statement that we cannot proceed with RDs". Mr Merrell's notes records similar advice from an Assistant Director in the Immigration Service on 18 January, but with the caveat that removal could not take place while criminal proceedings were pending against the first claimant.

A telephone call from the police to Mr Merrell on 19 January informed him that the police were not intending to take further action against the first claimant on the assault allegation made against her, on "pragmatic" grounds. Mr Merrell was also told that the officer was due to see the first claimant on 24 January to take a statement about her own allegation of assault. Mr Merrell records that he told the officer that "in the light of this, we may be in a position to re-set RDs for after that date".

On 20 January 2006 LL wrote to Mr Merrell asking for the claimants to be granted temporary admission, noting the complaint about the assault on the first claimant and (as they thought) pending criminal proceedings against her. "Therefore…", they wrote, "…there are no removal directions imminent in this case". The letter continued:

"We have had sight of a medical report from a doctor who visited our client and her son following her return to Yarlswood Detention centre after the attempted removal. Our client required medical treatment for cuts and bruises and anti inflammatory tablets for pain in her upper back muscles.

The report also refers to the client's five year old son who was to be removed at the same time as the client and witnessed the treatment of his mother. As a result, he has become withdrawn and speaks very rarely and only with encouragement of his mother. The doctor refers to the concern of the medical staff at the detention centre for the well being of the child to the point that he was referred to a counsellor. He misses his family and the continuing separation can only be causing more grief and trauma for a young boy of 5 years old. The doctor refers to the child, Nima, as being "traumatised". Clearly, you can refer to the medical department at the Detention centre for verification of these details.

We do not believe that it is in the best interests of the child to be detained in this manner at this time. Whilst the complaint is investigated, the client and her son should be given further temporary admission with appropriate conditions if required."

The letter was sent by fax at 1948 hours and was seen at Stansted the next day. Later that day Mr Merrell replied informing LL that the criminal allegation against their client was not to be pursued and stated that he would respond further to the letter of 20 January "within the next few days". On 24 January he was chased by telephone call for a response.

On the following day, Mr Merrell reviewed the situation in a further note. He wrote:

"I feel uncomfortable about several aspects of this if we try and proceed with removal at present.

1. Mrs. A has only seen yesterday for provision of a statement in regard to her allegation of criminal assault. This means we are some way off being able to state that her allegation has been fully investigated.

2. Whilst being able to say that they had had 4 weeks to consult and decide re the civil action if we set RDs for 2 weeks time, I cannot justify the extra detention time given that a child of 5 years is involved.

In the circumstances I have decided to release with weekly reporting. We can then send off the 100 or so pages of extra reps received today to RCT to deal with. In 2 – 3 months time we can then look at re-detaining the family for removal. By that time we will know the outcome of the police investigation and will be able to comment on that in any robust letter to the reps. More than ample time would have passed in relation to consulting and commencing a civil claim, and they would have a much weaker case of arguing they needed more time. It would also allow us sufficient time to plan the detention and removal in light of what we now know Mrs A's behaviour can be. Hopefully this would mean that we could put in place various things to ensure this does not happen."

As a result the claimants were released from detention.

It is in those circumstances that the claimants allege that their detention was unlawful throughout the period from 5 to 25 January 2006 and that, accordingly, the defendant falsely imprisoned them.

(C) The Law

The defendant contends that the detention of the claimants was in lawful exercise of powers conferred by section 4 of and Schedule 2 to the Immigration Act 1971. Section 4 of the Act provides that,

"The provisions of Schedule 2 to this Act shall have effect with respect to -…

… (d) the detention of persons…pending removal from the United Kingdom; …"

Paragraph 16(2) of Schedule 2 to the Act states that,

"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…, 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."

The power of detention for the purposes of removal of an immigrant is subject to well-known legal limits. They emerge from the decision of Woolf J (as he then was) in R v Governor of Durham Prison, ex p. Hardial Singh [1984] WLR 704 and in the judgment of Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2003] INLR 196, paragraph 46. They were summarised by Dyson LJ 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 a reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that 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." (see per Dyson LJ loc. cit.)

Side by side with these requirements of the substantive law, for some years the defendant has had well-known published policies as to the circumstances in which the power to detain will be exercised and the factors which will normally guide his or her judgment. The background to the detailed policies is to be found in two White Papers of 1998 and 2002 respectively called "Fairer, Faster Firmer" and "Secure Borders Safe Haven". Paragraphs 12.3 of the former stated:

"The Government has decided that, while there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances: where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release; initially to clarify a person's identity and the basis of their claims; or where removal is imminent …

In paragraph 12.10 it was stated:-

In addition to any consideration of bail through the judicial process, the Immigration Service will continue its periodic administrative review of detention in each case. Individuals should only be detained where necessary.

Paragraph 12.11 stated:-

Detention should always be for the shortest possible time, but the Government is satisfied that there should be no legal maximum period of detention … ."

Paragraph 4.76 of the latter paper said this:

"Although the main focus of detention will be on removals there will continue to be a need to detain some people at other stages of the process. Our 1998 White Paper set out the criteria by which immigration Act powers of detention were exercised and confirmed that the starting point in all cases was a presumption in favour of granting temporary admission or release. The criteria were modified in March 2000 to include detention at Oakington reception centre if it appeared that a claimant's asylum application could be decided quickly. The modified criteria and the general presumption remain in place … ."

It is from these passages that the policy criterion of "imminent" removal as a basis of detention emerges. On top of these, the defendant compiled and published an "Operations Enforcement Manual", providing more detail as to the exercise of the detention powers. These appear in Chapter 38 of the manual. Extensive passages from this chapter are set out in Miss Kilroy's helpful skeleton argument for the claimants and in the judgment of Lord Phillips of Worth Matravers MR (as he then was) in Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768 paragraph 26. It is not necessary to set those passages out again in this judgment. I have them well in mind.

With regard to splitting families in the removal process, it is accepted by the parties that the defendant's relevant policy at the time was to be found in a "Staffing Communication" PC/07 of 23 November 2005. The relevant passage is in the following terms:

"Where the removal of an incomplete family (one where removal would result in the family unit being split) is contemplated and where that split has been caused by the behaviour of members of the family (eg absconding or not turning up to self check-in) authority at AD level must be obtained on every occasion.

Ministerial consent must be sought where:

a) We are seeking to separate a family by removing part of the family from one country and the other part of the family to a different country; or

b) we are seeking to remove part of the family while not actively seeking to remove the other part (ie where a travel document is not available).

Ministerial consent does not need to be sought where:

a) The family unit did not exist prior to arrival in the UK:

b) We detain the head of the household and issue self check-in removal directions to the rest of the family to the same country;

one part of the family absconds or seoerates him/herself through their own actions (ie one parent places the children with friends in an attempt to thwart removal)."

The claimants submit that what occurred here breached that policy also.

In addition to alleged breaches of these policies, in the course of argument (although not in the pleadings) the claimants also relied upon Chapter 58 of the defendant's manual, the copy before the court being dated January 2006 (and, therefore, most likely in my judgment to have emerged after the initial detention of the claimants). This chapter deals with "pastoral visits". It states that such a visit should occur in all family cases and that the visit "would usually be taken 24-48 hours prior to the detention visit".

After the hearing was concluded, the defendant disclosed a further edition of this chapter of the manual dated September 2005, although the court was informed by the Treasury Solicitor that the instructions from the defendant were that this was not cleared for implementation or made available to caseworkers before March 2006.

The claimants argued that, in so far as such a policy was in force, the failure to conduct a visit in this case at the beginning of January 2006 was a further breach of policy and, as a result, the parties were unaware that the claimants' solicitors' letter of 13 November 2005 (relating to GE's claimed travel document problems) had not been properly sent; further, the possibility of a split removal would have emerged and the claimants would have been able to make their separate asylum claims before they were taken into detention.

The defendant argued in response that this part of the manual was not in force at the time of detention in this case. Further, there was no mandatory requirement of such a visit within 48 hours of detention being effected and, anyway, a visit had been conducted in this case in June 2005. The defendant also relied upon the evidence of Mr Merrell that on such a visit the subjects would not be informed of the intention to detain so as to minimise the risk of absconding. Again, it was argued that anyway a breach of such a policy did not render the underlying detention unlawful.

It is also argued for the second claimant that, in the context of the rights arising under Article 5 of the ECHR, the defendant was also obliged to have regard to the UN Convention on the Rights of the Child, Articles 3 and 37. It is submitted that in this case the relevant officials paid scanty attention to the second claimant's welfare interests throughout the process, thus rendering the detention unlawful for that reason also: see S, C, and D v Secretary of State for the Home Department [2007] EWHC 1654 (Admin) and R (Nukajam) v Secretary of State for the Home Department [2010] EWHC 20 (Admin).

These submissions (that the defendant had acted in breach of published policies) threw up a debate between counsel as to the proper understanding of the inter-reaction of the substantive law and ministerial policy in determining the lawfulness of immigration detention. This in turn involved a consideration of three principal authorities in the Court of Appeal and a number of decisions at first instance.

The Court of Appeal cases were Nadarajah (supra), R (SK (Zimbabwe)) v Secretary of State for the Home Department [2009] 1 WLR 1527 and R (WL (Congo) and KM (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 111. As is clear from the report of SK, leave was given to appeal to the House of Lords and I understand that the appeal in that case was heard in the Supreme Court earlier this year. I was also told at the hearing that judgment on that appeal has been deferred until after an appeal to that court in WL and KM. It is, therefore, with considerable diffidence that I approach any analysis of the state of the law in this field.

Miss Kilroy's submissions relied heavily upon the decision in Nadarajah. In that case in giving the judgment of the court on N's appeal, the Master of the Rolls said,

"Those acting for N could reasonably expect, having regard to those aspects of the Secretary of State's policy that had been made public, that N would not be detained on the ground that his removal was imminent. The only basis upon which the Immigration service could treat his removal as imminent was by applying that aspect of the Secretary of State's policy which had not been made public, namely that no regard would be paid to an intimation that judicial review proceedings would be instituted. The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public."

In relation to A, N's co-appellant, the Master of the Rolls said,

"It is clear, on the evidence, that the reason why A was detained was in the hope that, by ensuring that he had an interview with the Sri Lanka High Commission, the documentation would enable his prompt removal to Sri Lanka if and when his appeal failed. This did not fall within the Secretary of State's policy, as made known to A and his solicitors.

Had the Secretary of State included in his policy, as a reason for detention, 'to facilitate documentation needed for removal' we do not believe that any objection could have been made under Article 5. Equally, had he published his policy to disregard an intimation that proceedings would be initiated, for the purposes of deciding when removal is imminent, he would have been in a position lawfully to detain A for that reason and the additional reason that detention was necessary for documentation purposes. In the event, however, the detention was unlawful. It was at odds with the Secretary of State's policy, as made public."

Nadarajah was a case where immigration detention was challenged (in two deportation cases). The decisions had been taken in the face of communication by the claimants' lawyers of an intention to institute proceedings to challenge the detention/removal decisions. Published policy indicated at the time that action on such decisions would be stayed pending the outcome of such challenges once instituted. It was not known that, in reality, the Secretary of State would disregard mere information from legal advisers that proceedings were about to be instituted. It was in this context that the court reached the decisions that it did in the cases in issue in Nadarajah.

In SK, the claimant was detained with a view to his deportation after conclusion of a prison sentence. There were serial failures to review that detention by officers at an appropriate level in the Department, in breach of the defendant's policy on detention reviews. Munby J (as he then was) had held that compliance with the policy (in Chapter 38 of the Operations Enforcement Manual) and the Detention Centre Rules 2001 was a prerequisite to the lawfulness of continued detention. He declared that detention had been unlawful in certain identified periods.

The appeal against that decision was allowed on the basis that, as a matter of statutory construction, compliance with the rules as to reviews was not a requirement for lawful detention under the power contained in paragraph 2(2) of Schedule 3 to the 1971 Act. The court held that compliance with the manual and Rules might be a manner in which the Secretary of State could demonstrate that detention was not unlawful, but non-compliance did not necessarily prove the contrary. Unlawful failure to comply with the Rules and manual might attract public law remedies by way of declaration, but that would not of itself turn the detention into an unlawful one.

In WL and KM, further deportation cases, detention was challenged on the basis that the Secretary of State was operating an unpublished "blanket policy" to detain foreign national prisoners on completion of their sentences pending deportation or pending a decision to deport. Such a policy contrasted with the previous published policy to detain on completion of the prison sentence only when continued detention was justified. There was substantial consideration, both at first instance and in the Court of Appeal, of the true nature of the relevant new policy: was it truly a blanket policy to detain in all cases or merely a presumption in favour of detention in such cases? For present purposes, however, the important question is as to the court's view of the effect of an unlawful departure from published policy. As to this, in its summary of conclusions in paragraph 48, the court said,

"…(3) from April 2006 until September 2008, there was in operation a secret policy or practice, which was unlawful because it conflicted with, and was less favourable to the Appellants than the published policy.

(4) This did not make the detention unlawful unless the unlawful practice or policy was a material cause of the detention. It is necessary, therefore, in every case in which it is relevant to do so, to ascertain whether detention was authorised by reference to the blanket practice or policy or by consideration of a presumption or, indeed, without reference to any administrative practice or presumption…"

The court went on to say a little later that,

"…for the purposes of the common law tort of false imprisonment the decision to detain may be rendered invalid not only by a lack of specific statutory authority for the detention, but also by breach of Wednesbury principles…. ".

That cannot be the end of citation from this case, because the whole of it (like SK) deals with the inter-reaction of law and policy in the context of the exercise of statutory powers of detention. In the end, however, as will appear, I do not consider that this debate impacts heavily on the decision in this present case. A few further quotations are necessary to an understanding of how I consider this part of the argument before me affects my own decision.

At paragraph 57 and 58 of the judgement in WL and KM, Stanley Burnton LJ said:

"Secondly, to state the obvious, policy is not the same as law. The Home Secretary is not a legislator, except to the extent (not relevant here) that he has been given specific powers to make delegated legislation. This is as true under the Convention as it is in domestic law. Indeed, it is clear that, where the Convention requires something to be done in a manner "prescribed by law", that means what it says; mere administrative policies are not good enough: see R (Gillan) v Commissioner of Police of Metropolis [2006] UKHL 12; [2006] 2 AC 307 at paragraphs 31 to 34 per Lord Bingham.

However, although policy is not to be equated with law, it may give rise to obligations or restrictions in public law. Depending on the context, that may be explained in different ways. For example, a failure by the Secretary of State to apply his own published policy without good reason may be reviewable as a breach of legitimate expectation (see e.g. R (Abbasi) v Foreign Secretary [2003] UKHRR 76; [2002] EWCA Civ 1598, paragraph 82). A different analysis is needed where the decision is by a different body. Thus, a failure by a local planning authority to have regard to planning policy guidance, issued by the Secretary of State is not a breach of any expectation created by the authority, but may be categorised as a failure "to have regard to material considerations", under familiar Wednesbury principles. More broadly, such cases may sometimes be analysed as examples of inconsistency or unfairness amounting to abuse of power. Indeed, we may have arrived at the point where it is possible to extract from the case a substantive legal rule that a body must adhere to its published policy unless there is some good reason not to do so. The treatment of such concepts may vary in the cases and textbooks, but the differences are usually immaterial. The principles are well summarised in the discussion in Wade & Forsyth Administrative Law 10^th Ed p 315: "Inconsistency and unfairness, legitimate expectation"; see also De Smith's Judicial Review 6th Ed p 618 "To whom directed – personal or general?") "

In paragraph 78 of the judgment, the Court treated the decision in Nadarajah as being "explicable under the principles of legitimate expectation…", thus explaining the passage (in paragraph 54) of the judgment in the former case where it was said that,

"Our domestic law comprehends both the provisions of Sch 2 to the Immigration Act and the Secretary of State's published policy, which under principles of public law, he is obliged to follow".

Finally, the court in WL and KM referred to the contrasting statutory powers of detention in deportation cases. Paragraph 2(1) of Schedule 3 to the 1971 Act imposes (with limited exceptions) a requirement that a person be detained pending the making of a deportation order in case where a recommendation for deportation has been made by a court. On other cases, where notice has been given of a decision to make a deportation order or where such an order has been made the subject may be detained at the discretion of the Secretary of State. Of these powers, Stanley Burnton LJ said this:

"We consider, first, that it is necessary to distinguish between the detention of FNPs under sub-paragraph (1) of paragraph 2 of Schedule 3 to the 1971 Act and detention under sub-paragraphs (2) or (3). Sub-paragraph (1) is itself legislative authority for the detention of a FNP who has been sentenced to imprisonment and who has been the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the Court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances. Furthermore, SK is authority, binding on us, that a failure in breach of procedural rules to review his detention does not necessarily render the detention unlawful.

The position is different when the decision to detain is made under sub-paragraph (2) or (3). In these cases, there is no lawful authority to detain unless a lawful decision is made by the Secretary of State. The mere existence of an internal, unpublished policy or practice at variance with, and more disadvantageous to the FNP than, the published policy will not render a decision to detain unlawful. It must be shown that the unpublished policy was applied to him. Even then, it must be shown that the application of the policy was material to the decision. If the decision to detain him was inevitable, the application of the policy is immaterial, and the decision is not liable to be set aside as unlawful. Once again, however, once a decision to detain has lawfully been made, a review of detention that is unlawful on Wednesbury principles will not necessarily lead to his continued detention being unlawful.

For completeness, we would add that the test of materiality may not be precisely the same as in the context of an application for a quashing order in judicial review. In that context, a court, faced with a judicial review claim made promptly following the original decision, would be likely to quash a decision, and require it to be retaken, even if the evidence showed only a risk that it might have been affected by the illegality. However, in the context of a common law claim in tort, which is concerned not with prospective risk, but actual consequences, we think it would be entitled, if necessary, to look at the question of causation more broadly, and ask whether the illegality was the effective cause of the detention (see e.g. Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360, 1374; and the discussion of "Causation Law" in Clerk & Lindsell Torts 19^th Ed, paras 2-69-71). "