England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th February 2014

Mrs Justice Lang:

1. The Claimant is a national of Greece who was detained by the Defendant between 28^th May and 5^th December 2006, pursuant to a deportation order made on 20^th March 2006, which was revoked on 7^th December 2006. He claims damages for false imprisonment, on the basis that, following the implementation of Directive 2004/38/EC by the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"), with effect from 30^th April 2006, he could only be removed from the UK "on imperative grounds of public security" which were never established in his case. The Defendant defends the claim on the basis that the deportation order of 20^th March 2006 was validly made under the Immigration (European Economic Area) Regulations 2000 ("the 2000 Regulations"), and its validity was continued under the 2006 Regulations.
2. By virtue of section 17(3) Crown Proceedings Act 1947 and CPR Pt 66, this civil claim has been brought against the Home Office, whereas the earlier judicial review proceedings were properly brought against the Secretary of State for the Home Department ("the Secretary of State"). Nothing turns on this distinction in this case.

History

3. The Claimant was born in Greece on 21^st January 1969. He has resided in the United Kingdom (UK) since 1994. In 1995 he began a relationship with Ms Andrea Lavor, a Brazilian national, and their son was born on 9^th December 1996. In January 2003, Ms Lavor was granted indefinite leave to remain in the UK.
4. The Claimant has been convicted of 20 criminal offences, the first in October 1999. On 2^nd July 2004, he was sentenced to 30 months imprisonment for an offence of permitting premises to be used for the supply of Class A drugs. On 14^th October 2005 he was convicted of theft from a motor vehicle and destruction of property, for which he was sentenced to 2 months imprisonment. He was released from prison on 16^th February 2005.
5. On 9^th November 2004, the Secretary of State wrote to him seeking reasons why he should not be deported from the UK because of his drugs offence. By letter dated 13^th April 2005, he was notified that the Secretary of State had decided to make a deportation order against him under section 3(5) Immigration Act 1971, on the grounds that he deemed it conducive to the public good to deport him from the UK. Reasons were given in the Defendant's letter of 26^th April 2005, which recorded that he had been resident in the UK for ten years. The application of Art. 8 ECHR to his family circumstances and the factors in paragraph 364 of the Immigration Rules were all considered.
6. The Claimant was also served with a formal 'Notice of Decision to Remove in compliance with the Immigration Notices Regulations 2003, made under section 105 Nationality Immigration and Asylum Act 2002 and taken under the European Economic Area Regulations 2000'. He was notified that he had a right of appeal against this decision, under section 82(1) Nationality Immigration and Asylum Act 2002, but he did not exercise it.
7. On 20^th March 2006, the Secretary of State made a deportation order under section 5 Immigration Act 1971. The order authorised his detention, pursuant to paragraph 2(3) of Schedule 3, until he was removed from the UK.
8. On 17^th May 2006, the Secretary of State set directions for the Claimant's removal to Greece on 31^st May 2006. The removal did not take place for administrative reasons.
9. The Claimant was detained in immigration detention, on 28^th May 2006.
10. In representations sent to the Defendant on 30^th May 2006, the Claimant challenged the deportation order and the removal directions, under Art. 8 ECHR, on the grounds that he had a 9 year old British son who could not be expected to resettle in Greece. On 30^th May 2006, the Greek Consulate asked the Defendant the reason for his deportation. The Claimant also applied for bail. No reference was made to the 2006 Regulations or the Directive by the Claimant.
11. In a letter to the Claimant dated 30^th May 2006, the Secretary of State refused the request to cancel the deportation and the removal directions. On 1^st June 2006, further removal directions were set for 10^th June 2006.
12. On 9^th June 2006, the Claimant applied for judicial review of the decision to remove him and for permission to appeal the deportation order out of time, relying inter alia upon his rights under Art. 3 and 8 ECHR.
13. The removal directions were cancelled upon receipt of the application to apply for judicial review.
14. On various dates, the Secretary of State reviewed the decision to detain the Claimant and refused to release him. No consideration was given to the effect of the 2006 Regulations.
15. On 18^th July 2006, Owen J. refused permission, stating that there was no realistic prospect of success for the reasons set out in the Secretary of State's Acknowledgment of Service (which did not include any reference to the 2006 Regulations).
16. The Claimant renewed his application for judicial review, and a date was fixed for an oral hearing on 8^th December 2006. In late November 2006, he instructed his current solicitors, who wrote to the Secretary of State on 1^st December 2006, contending that his deportation and detention were now unlawful, following the coming into force of the 2006 Regulations. They enclosed the decision of the Asylum and Immigration Tribunal (AIT) in MG & VC (Ireland) [2006] UKAIT 00053, which confirmed (at [16]) that the effect of the transitional provisions on appeals in paragraph 5 of Schedule 4 to the 2006 Regulations was that, after 29^th April 2006, deportation orders made under the 2000 Regulations were to be treated as if they had been made under the 2006 Regulations, and any appeal had to be determined by applying the 2006 Regulations.
17. On 4^th December 2006, the Claimant was unconditionally released by the Secretary of State. In a letter of 4^th December 2006, the Secretary of State informed the Claimant that he had decided not to remove him under reg. 21 of the 2006 Regulations. On 7^th December 2006, the deportation order was revoked.
18. At a hearing on 8^th December 2006, the application for permission was adjourned by Davis J to enable the Claimant to amend his grounds for judicial review. The order was made by consent, upon the Secretary of State "accepting that the Claimant is presently entitled to reside in the United Kingdom under the provisions of the Immigration (European Economic Area) Regulations 2006".
19. On or about 5^th December 2006, amended grounds for judicial review were filed. The amended grounds relied upon the 2006 Regulations for the first time, and sought declarations that the deportation order and the detention were unlawful, and that the Claimant was entitled to remain in the UK. There was also a claim for damages for unlawful detention.
20. The Secretary of State filed amended Summary Grounds for opposing the claim for judicial review, dated 27^th February 2007. Permission was granted on the amended grounds on 2^nd March 2007. Detailed Grounds of Resistance were filed on or about 30^th May 2007.
21. In the event, the judicial review claim was never determined because the requisite fees to continue the claim, following the grant of permission, were not paid. The case was closed by the court on 26^th June 2007.

Submissions

22. The Claimant submitted that, on a proper interpretation of the 2006 Regulations, the continuing lawfulness of the deportation order had to be assessed by the Secretary of State under the 2006 Regulations, once they came into force. It must have been obvious to the Secretary of State that the deportation order could no longer be implemented because the Claimant had resided in the UK for more than ten years and so he could only be deported on "imperative grounds of public security" which did not exist in his case. The deportation order ought to have been revoked in May 2006.
23. Applying the four principles established in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), [1984] 1 WLR 704, the Claimant was unlawfully detained in immigration detention from 28^th May 2006 because:

(1) the power to detain was not being used for the purpose of effecting any lawful deportation or removal;

(2) in the circumstances, no period of detention was reasonable;

(3) alternatively, even if the deportation order remained lawful after 29^th April 2006, it should have been readily apparent to the Secretary of State, that it could not be implemented within a reasonable time because a decision to remove him, post 29^th April 2006, would be unlawful;

(4) the Secretary of State had not acted with reasonable diligence and expedition either in considering the effect of the 2006 Regulations or revoking the deportation order.

24. The Defendant's response was that the sole purpose of paragraph 4 in Schedule 4 to the 2006 Regulations was to ensure the continued validity of deportation orders made under the 2000 Regulations. The 2006 Regulations did not impose any duty on the Secretary of State to re-consider the lawfulness of the deportation order previously made in respect of the Claimant. The deportation order remained in force and provided lawful authority to detain the Claimant and to set removal directions. The removal directions did not constitute a fresh decision under the 2006 Regulations; they were merely the implementation of the deportation order made under the 2000 Regulations. It followed that the Hardial Singh principles had no application in this case.

Conclusions

25. Under the Immigration Act 1971:

(1) By section 3(5)(a), a person who is not a British citizen is liable to deportation from the UK if the Secretary of State deems his deportation to be conducive to the public good;

(2) By section 5(1), the Secretary of State may make a deportation order against a person who is liable to deportation under section 3(5)(a), that is to say, an order requiring him to leave and prohibiting him from entering the UK;

(3) By section 5(3), the provisions of Schedule 3 have effect with respect to the removal and detention of persons against whom deportation orders are in force;

(4) Under paragraph 1 of Schedule 3, where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country of which he is a national or citizen;

(5) Under paragraph 2(3) of Schedule 3, where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal.

26. In the case of EU nationals, the Secretary of State power to deport under the Immigration Act 1971 is constrained by EU law. Free movement of EU citizens is a Treaty right which has been the subject of numerous Directives, and has been implemented into UK domestic law.
27. Reg. 21(3) of the 2000 Regulations provided that a person may be removed from the UK if "the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health".
28. Directive 2004/38/EC introduced a significant restriction on the expulsion of EU nationals who had resided for ten years or more in another Member State. Article 28 provided that:

"..an expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they

(a) have resided in the host Member State for the previous ten years"

29. The rationale behind this change was that "the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State" (paragraph 24 of the Preamble).
30. By Article 40, Member States were required to transpose the Directive by 29^th April 2006. The UK Government did so by means of the 2006 Regulations, which were made by the Defendant on 30th March 2006, and after being laid before Parliament, came into force on 30^th April 2006.
31. The 2006 Regulations made provisions for removal from the UK of EU nationals with ten or more years residence in the following terms:

"19. Exclusion and removal from the United Kingdom^[1]

(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if — […]

(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21."

"21. Decisions taken on public policy, public security and public health grounds^[2]

(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—

(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or ..

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person's previous criminal convictions do not in themselves justify the decision.

(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."

"24. Person subject to removal^[3]

(1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3).

…

(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provisions as to deportation) are to apply accordingly."

32. Reg. 2(1)^[4] defined an "EEA decision" as:

"a decision under these Regulations that concerns a person's –

(a) entitlement to be admitted to the United Kingdom;

(b)entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or

(c) removal from the United Kingdom."

33. It was common ground that:

(1) the deportation decision and subsequent notice to deport had been lawfully made, prior to 29^th April 2006, under the relevant provisions of the Immigration Act 1971 and reg. 21(3)(b) of the 2000 Regulations; and

(2) the deportation decision and subsequent notice to deport could not have been lawfully made, after 29^th April 2006, under the relevant provisions of the Immigration Act 1971 and reg. 21(4)(a) of the 2006 Regulations.

34. Directive 2004/38/EC was not retrospective in operation. It is an established principle of statutory construction that an enactment is presumed not to be intended to have retrospective operation unless the contrary intention appears. There is nothing in the wording of the preamble or the Articles of the Directive to suggest that it was intended to be anything other than forward-looking. Article 28, which refers to a Member State taking a decision to expel, should be interpreted as referring to decisions taken after the date the Directive came into force on 30^th April 2004 and after the date of transposition into the domestic law of the relevant Member State (provided that the deadline for transposition was met).
35. The disputed issue before me is whether the presumption against retrospective legislation has nonetheless been rebutted in the 2006 Regulations because of the terms of the transitional provisions.
36. Under reg. 31(1) and schedule 3, the 2000 Regulations were revoked in their entirety, subject to only one minor saving provision in respect of posted workers. The transitional provisions in reg. 31(2) and schedule 4 provided that actions and decisions made pursuant to the 2000 Regulations were to be treated as if they were actions and decisions made pursuant to the 2006 Regulations. Thus:

(1) permits and residence documents issued under the 2000 Regulations were to be treated, after 29^th April 2006, as if they were issued under the 2006 Regulations (paragraph 2);

(2) applications for permits and residence documents made under the 2000 Regulations were to be treated, after 29^th April 2006, as if they had were made under the 2006 Regulations (paragraph 3);

(3) decisions to remove persons from the UK, made under the 2000 Regulations, were to be treated, after 29^th April 2006, as if they had were made under the corresponding provisions of the 2006 Regulations (paragraph 4);

(4) pending appeals against decisions made under the 2000 Regulations, were to be treated, after 29^th April 2006, as a pending appeal against a decision made under the corresponding provision of the 2006 Regulations (paragraph 5);

37. The effect of paragraph 5 of schedule 4 on appeals has been considered by the courts on several occasions. In TC (Kenya) v Secretary of State for the Home Department [2008] EWCA Civ 543, Pill LJ said:

"Even though the decision of the respondent was made under the terms of the predecessor regulations to the 2006 Regulations, namely the Immigration European Economic Area Regulations 2000 (as amended), the Tribunal was required to, and did, treat the decision as if made under the 2006 Regulations (paragraph 4 of Schedule 4 to the 2006 Regulations) and consequently treated the appeal as if governed by the 2006 Regulations and the 2004 Directive."

38. In KG (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 664, Richards LJ said:

"17 On the face of it therefore the appellant's appeal was to be treated after 30 April 2006 as an appeal against a decision not to issue a residence card under the 2006 Regulations."

….

"23. Mr Gill relies on the presumption against retrospectivity; a principle of statutory construction. He cites for example this passage from the judgment of Staughton LJ in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 at 724 f–g:

"In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree — the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended."

….

"25 The obvious difficulty faced by the appellant in seeking to rely on the presumption against retrospectivity is that the presumption has to give way to clear words, and the relevant provisions of the 2006 Regulations are in my judgment clear. Schedule 3 revoked the 2000 Regulations subject to the transitional provisions in Schedule 4, and paragraph 5 of Schedule 4 stated in plain terms that the pending appeal was to be treated as an appeal against the corresponding decision under the 2006 Regulations (and it explained what was meant by such a corresponding decision). There is simply no scope for reading the 2006 Regulations as allowing a pending appeal to continue to the reference to the 2000 Regulations. The 2000 Regulations are displaced in their entirety by the 2006 Regulations and any pending appeals have to proceed on that basis."

39. In MG & VC (Ireland) [2006] UKAIT 00053, Mr Ockleton, Deputy President of the AIT said, at [16]:

"The first thing that is apparent is that the new Regulations came into force immediately on 30 April 2006, and that the previous law is no longer in effect. The effect on existing decisions and appeals is quite remarkable: they are to be treated as decisions and appeals under the new Regulations. The consequence may be that a decision lawful when it was made, and a determination by the Tribunal containing no error of law when it was made, may now disclose an error of law because of the retrospective change of the decision and its authority."

40. These cases all concerned pending appeals. In my judgment, there is a distinction to be drawn between, on the one hand, the cases where a decision was pending, as at 30^th April 2006 (i.e. pending appeals (paragraph 5) and outstanding applications (paragraph 3)) and, on the other hand, cases where there was no pending decision (i.e. existing documents (paragraph 2) and decisions to remove (paragraph 4)).
41. In cases where there was a pending decision or application, I conclude from the wording of the relevant provisions, that the Secretary of State (the maker of the Regulations) must have intended that the decision which was to be made after 30^th April 2006 should be made in accordance with the 2006 Regulations and the Directive. In the case of appeals, it inevitably followed that a decision which was lawful when made under the 2000 Regulations might be held to be unlawful on appeal under the 2006 Regulations, because of a change in the applicable law.
42. In cases where there was no pending decision, on my interpretation of the provisions, the primary purpose was to preserve the validity of decisions made under the revoked 2000 Regulations. This was essential because, for example, residence permits had to remain in force (paragraph 2), as did deportation orders (paragraph 4). The Schedule did not have to address the difficulty of pending decisions in relation to these cases.
43. I cannot accept that it is possible to read into the terms of paragraph 4 a duty on the Secretary of State to review existing decisions to deport and deportation orders to see if they were compliant with the 2006 Regulations, and to re-take those decisions. Such a major exercise, potentially re-opening hundreds of deportation orders made in previous years (some with concluded appeals), would have been such a significant commitment that express provision would surely have been made for it. Moreover, as the Directive was not retrospective in effect, it was not a requirement of EU law.
44. The Secretary of State could simply have made saving provisions in respect of decisions made under the 2000 Regulations so that they continued to be governed by the 2000 Regulations. He chose not to do so; no one at this hearing could tell me why. In my judgment, whether intended or not, the legal effect of deeming existing deportation decisions and orders to have made under the 2006 Regulations was that any future issue concerning an order already made had to be determined as if the original order had been made under the 2006 Regulations, thus giving the 2006 Regulations retrospective effect.
45. After 29^th April 2006, if an application was made to challenge a deportation order made under the 2000 Regulations by way of judicial review, it would have to be treated as if it had been made under the 2006 Regulations, and so the lawfulness of the original order would have to be decided in accordance with the 2006 Regulations, not the 2000 Regulations. Potentially, this could result in the same legally anomalous situation as arose in cases with pending appeals under paragraph 5: see TC (Kenya), KG (Sri Lanka) and MG & VC (Ireland). In my view, this was the clear effect of the manner in which paragraph 4 of Schedule 4 was drafted.
46. Similarly, if an application was made, after 29^th April 2006, to revoke a deportation order made under the 2000 Regulations, the Secretary of State would have had to treat it as if it had been made under the 2006 Regulations, and consider and determine it in accordance with the 2006 Regulations.
47. In this case, the Claimant sent representations to the Defendant on 30^th May 2006, challenging the deportation order and the removal directions, under Art. 8 ECHR, on the grounds that he had a 9 year old British son who could not be expected to resettle in Greece. On 30^th May 2006, the Greek Consulate asked the Defendant the reason for his deportation. A copy of the Defendant's response to the Greek Consulate has not been provided.
48. In my judgment, the Secretary of State did treat this as an application to revoke, which was considered on the merits, and refused. In a letter to the Claimant dated 30^th May 2006, the Immigration and Nationality Directorate of the Home Office said:

"Thank you for your letter of today's date which has been passed to this office for consideration. Your representations have not been considered by the Secretary of State personally but by an official acting on his behalf.

You have requested that we cancel your deportation and defer removal directions in place for tomorrow at 12.20 hrs. You state that it would be a breach of your rights under the European Convention on Human Rights (ECHR) to deport you to Greece because you have a son in the United Kingdom. However, the issue of your son was considered fully in our letter of 26 April 2005 which was in response to representations made on your behalf by your legal representatives. You also had the opportunity of appealing against the decision to deport you but you did not exercise your appeal rights. It is considered that you rely on the same core grounds that have previously been considered and refused. We are satisfied that you have not raised any grounds to cause us to reverse our decision to deport you.

In the circumstances, your case has been reviewed and the decision on whether it would be right to proceed to deport you carefully considered. It was concluded, however, that there are no compelling or compassionate factors in your case sufficient to justify cancelling the removal directions. Your representations are accordingly rejected. The removal directions will therefore proceed as arranged. If you wish to reply to this letter you should direct your response to the Immigration Service at Communications House which retains conduct of this case. "

49. In my judgment, the refusal to revoke the deportation order was legally flawed because the Secretary of State gave no consideration to the effect of the 2006 Regulations, which were in force by then. Although no reference was made to the 2006 Regulations by the Claimant, once the Secretary of State embarked on a re-consideration of the merits of the Claimant's deportation order, he was required to apply the correct legal tests, even if the Claimant had failed to do so. I do not know what passed between the Greek Consulate and the Defendant at the time.
50. The effect of paragraph 4 of Schedule 4 to the 2006 Regulations was that the decision to deport and notice to deport made under the 2000 Regulations had to be treated as if it had been made under the 2006 Regulations. The letter of 26th April 2005, giving the reasons for the decision to deport, expressly stated that the Claimant had been resident in the UK for ten years. The existence of a 9 year old British son should also have alerted the Secretary of State to the possibility that the Claimant had been resident in the UK for ten years. So, in my judgment, the Secretary of State should have considered whether the Claimant came within the scope of reg. 21(4) of the 2006 Regulations, which restricted the removal of EU nationals who had been resident in the UK for ten years or more. It was common ground before me that there were no grounds upon which the Claimant could be deported under the 2006 Regulations.
51. On 9^th June 2006, the Claimant applied for judicial review of the decision to remove him and for permission to appeal the deportation order out of time, relying inter alia upon his rights under Art. 3 and 8 ECHR. He was acting as a litigant in person and did not refer to the 2006 Regulations. However, the issue of the legal justification for his deportation was flagged up by the following sentence he wrote in the claim form:

"The decision to deport and remove me from the UK is unreasonable in the circumstances as I do not pose a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society. I do not pose a future risk of re-offending."

52. In response, the Secretary of State cancelled the removal directions for 11^th June 2006. But, judging from the case records, no consideration was given to possible effect of the 2006 Regulations on the lawfulness of the original decision to deport until the Secretary of State received a letter from the Claimant's newly-instructed solicitors, drawing attention to the 2006 Regulations, on 1^st December 2006. Even the Secretary of State's Acknowledgment of Service and Summary Grounds of Defence, dated 13^th July 2006, failed to address the potential effect of the 2006 Regulations, which they ought to have done, regardless of whether the Claimant had done so. The Secretary of State must correctly apply the law, particularly when a person is deprived of his liberty, even if the detainee is unaware of his legal rights. It was common ground before me that there were no grounds upon which the Claimant could be deported under the 2006 Regulations. The error was compounded when the Judge refused permission on 18^th July 2006, in reliance upon the reasons set out in the Secretary of State's Summary Grounds.
53. I acknowledge that it cannot have been easy for the Defendant's officials and solicitors to get to grips with the effect of the 2006 Regulations, in particular Schedule 4. Nonetheless, these Regulations had been made by the Secretary of State and so someone in the Home Office must have drafted them and anticipated the legal issues which might arise.
54. The Amended Summary Grounds filed by the Secretary of State on 27^th February 2007 give an indication of the approach the Secretary of State might have taken if he had taken account of the 2006 Regulations when first considering the claim for judicial review in June 2006. In the Grounds, the Secretary of State contended that a deportation order made under the 2000 Regulations was not automatically rendered unlawful when the 2006 Regulations came into force, and that the Secretary of State was entitled to continue to rely upon its validity until it was challenged by the Claimant. However, this construction did not leave an applicant without any recourse if deportation was contrary to the 2006 Regulations since he could appeal or:

"If a deportation order has been made (and the appeal process already determined), an applicant can bring proceedings for judicial review and contend that the decision to set removal directions (based upon the deportation order) is unlawful as the grounds for the deportation order (and the decision to remove) no longer exist as a consequence of the operation of the 2006 Regulations." [paragraph 24].

55. This approach would require the Secretary of State to examine the facts of an applicant's case, and assess whether the changes in the 2006 Regulations had affected the lawfulness of the decision to deport and detain. This did not happen in the Claimant's case, although as a ten year resident, there were restrictions on the grounds of deportation under the 2006 Regulations which meant he could no longer be deported from the UK.
56. On 1^st December 2006, the Claimant's solicitors requested the Secretary of State to re-consider his case, on the basis of the 2006 Regulations, enclosing the AIT judgment in MG & VC (Ireland). The Secretary of State did so, and ordered his unconditional release almost immediately on 4^th December 2006. On the same day, he sent a letter informing the Claimant that he had decided not to remove him under reg. 21 of the 2006 Regulations. The Secretary of State then revoked the deportation order on 7^th December 2006.
57. The Secretary of State acted commendably quickly in response to the letter of 1^st December 2006. However, his actions in December do demonstrate to me that, if he had considered the effect of the 2006 Regulations sooner, he would have released the Claimant sooner. There had been a change of circumstances which, arguably, justified revocation. Even assuming that, for the purposes of the judicial review, he did not wish to concede that the deportation order could no longer stand, he should have recognised that there was no longer any prospect of imminent removal of the Claimant, because his removal was being challenged in the courts and there was a complex legal issue to be resolved.
58. It is a fundamental principle of public law that a decision of a public body remains in existence and valid, unless or until revoked or superseded by the maker, or quashed by a court. Therefore, even though the deportation order in this case was liable to be revoked or declared unlawful in a claim for judicial review, it remained valid until it was revoked or quashed. In consequence, the Claimant's detention was authorised, pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971.
59. In addition to the need for a valid statutory authorisation of detention, the power to detain is subject to the limitations set out in Hardial Singh. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196, Dyson LJ described the Hardial Singh principles in the following terms at [46]:

"i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation, the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

60. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, Lord Dyson said, at [22] and [24]:

"22. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles …"

61. In my judgment, once the Secretary of State had had a reasonable opportunity to consider the Claimant's application for judicial review on 7^th June 2006, it was no longer reasonable to continue to detain him, because of the legal obstacles to his deportation which had arisen under the 2006 Regulations, and the challenge to his deportation by way of judicial review, which I have described in paragraphs 45 to 57 above. Even if he wished to test the correct interpretation of the 2006 Regulations in the courts, he could not reasonably have concluded that there was any prospect of imminent removal of the Claimant. Applying the third Hardial Singh principle, I consider that his detention had become unlawful by 1st July 2006.
62. In reaching this conclusion, I have applied the dictum of Laws J. in In re Mahmod (Wasfi Suleman) [1995] Imm AR 311, at p 314:

"While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards."

63. The Claimant submits, in the alternative, that the decision to remove the Claimant in June 2006 was a fresh decision, made after the 2006 Regulations came into force, to which reg. 21 applied. I reject this submission.
64. Under the statutory procedure for deportation in the Immigration Act 1971, the Defendant made a decision to deport, under section 3(5)(a) Immigration Act 1971, and reg. 21(3) of the 2000 Regulations, having considered any representations made by the Claimant. Once the time for appeal had expired, the Defendant made a formal deportation order, under section 5(1) Immigration Act 1971. By section 5(3), the making of the deportation order, enabled the Defendant to detain the Claimant (under paragraph 2(3) of Schedule 3) and set removal directions (under paragraph 1 of Schedule 3). The heading to Schedule 3 is "Supplementary Provisions as to Deportation". In my view, the setting of the removal directions was an administrative decision to implement the substantive deportation decision and order which had previously been made. It was a consequence of the deportation order, and did not involve or require any re-consideration of the merits of the decision to remove.
65. The 2000 Regulations expressly applied the procedures under the Immigration Act 1971 to removals pursuant to the Regulations. Regulation 26 of the 2000 Regulations stated:

"26(1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 21(3).

…

(3) Where the decision is under sub-paragraph (b) of regulation 21(3), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provisions as to deportation) are to apply accordingly."

66. Reg. 21 of the 2006 Regulations applies to a "relevant decision" which means "an EEA decision taken on the grounds of public policy, public security or public health". I accept that the relevant definition of "an EEA decision" in reg. 2 is wide enough to encompass a decision to set removal directions. But I do not consider that the setting of removal directions is an "EEA decision taken on the grounds of public policy, public security or public health". It is apparent from paragraphs (5) and (6) of reg. 21 that such a decision requires a substantive consideration of the merits of the proposed removal, including proportionality, the conduct of the person, the nature of the threat to society, his personal circumstances and those of his family, the extent of his integration into the UK and his links with his country of origin. As I have already explained, a decision to set removal directions pursuant to a deportation notice does not involve a re-consideration of the merits of the removal, and therefore it is not the type of decision which falls within the scope of reg. 21. The absence of any reference to the setting of removal directions in the list of decisions to remove under the 2000 Regulations, in paragraph 4 of Schedule 4, further confirms my interpretation.
67. For the reasons I have given, I conclude that the Claimant was falsely imprisoned by being unlawfully detained in immigration detention between 1st July and 4^th December 2006.

Note 1   In force 30th April 2006 to 31st May 2009    [Back]

Note 2   In force 30th April 2006 to 5th April 2010.     [Back]

Note 3   In force 30th April 2006 to 31st May 2009    [Back]

Note 4   In force 30th April 2006 to 31st May 2009    [Back]