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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> WL (Congo) & Anor, R (on the application of) v Secretary of State for the Home Department  EWCA Civ 111 (19 February 2010)
Cite as: (2010) 107(9) LSG 18,  4 All ER 489,  WLR 2168,  1 WLR 2168,  UKHRR 366,  EWCA Civ 111
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH (ADMIN)
MR JUSTICE DAVIS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE STANLEY BURNTON
| THE QUEEN ON THE APPLICATION OF WL (CONGO) 1 and 2
THE QUEEN ON THE APPLICATION OF KM (JAMAICA)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Raza Husain, Laura Dubinsky and Andreas Pretzell (instructed by Lawrence Lupin) for the Appellant KM
Robin Tam QC, Charles Bourne and Jeremy Johnson (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 30 November, 1 & 2 December 2009
Crown Copyright ©
Lord Justice Stanley Burnton:
(1) A declaration that paragraph 2 of Schedule 3 to the Immigration Act 1971 prohibits the Home Secretary from operating any policy in relation to the detention of FNPs pursuant to that provision pending their deportation which contains a presumption in favour of detention.
(2) A declaration that it was unlawful for the Home Secretary to operate the policy introduced in April 2006 in relation to the detention of FNPs pending their deportation, in that it was not sufficiently published or accessible until its publication on 9 September 2008.
A. GENERIC ISSUES
The legislative background
3.(5) A person who is not a British citizen is liable to deportation from the United Kingdom if
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
(6) Without prejudice to the operation of subsection (5) above, a person who is not a [British citizen] shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
5.(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.
1. (1) Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either
(a) a country of which he is a national or citizen; or
(b) a country or territory to which there is reason to believe that he will be admitted.
2. (1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary or State directs him to be released pending further consideration of his case or he is released on bail.
(a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and
(b) he appeals against his conviction or against that recommendation,
the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.
(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(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 or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).
Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Second, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.
This has ever since been regarded as the authoritative statement of the implied limitations of the power to detain conferred by paragraph 2, and it was accepted as such before us.
Article 5: Right to Liberty and Security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
Power is conferred by the 1971 Act for the grant of bail. There is also, of course, the right to apply to the courts for habeas corpus or for judicial review by way of challenge to decisions continuing detention.
9. (1) Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly.
(2) The Secretary of State shall, within a reasonable time following any request to do so by a detained person, provide that person with an update on the progress of any relevant matter relating to him.
(3) For the purposes of paragraph (2) "relevant matter" means any of the following
(a) a claim for asylum;
(b) an application for, or for the variation of, leave to enter or remain in the United Kingdom;
(c) an application for British nationality;
(d) a claim for a right of admission into the United Kingdom under a provision of Community law;
(e) a claim for a right of residence in the United Kingdom under a provision of Community law;
(f) the proposed removal or deportation of the detained person from the United Kingdom;
(g) an application for bail under the Immigration Acts or under the Special Immigration Appeals Commission Act 1997;
(h) an appeal against, or an application for judicial review in relation to, any decision taken in connection with a matter referred to in paragraphs (a) to (g).
The published policies of the Home Office
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
In "Secure Borders Safe Haven" (2002) under the heading "Detention Criteria" this was said at paragraph 4.76:
4.76 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
1. There is a presumption in favour of temporary admission or temporary release.
2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3. All reasonable alternatives to detention must be considered before detention is authorised.
4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
5. Each case must be considered on its individual merits.
In paragraph 38.3 various relevant factors, for and against detention, were set out. In paragraph 38.6.3 a detailed exposition of the applicable requirements for reasons for detention was given. These reasons included, amongst others, a risk of absconding; removal from the UK being "imminent"; and release not being considered "conducive to the public good".
38.5.2 Authority to detain persons subject to deportation action
The decision as to whether a person subject to deportation action should be detained under Immigration Act powers is taken at senior caseworker level in CCD [the Criminal Casework Directorate]. Where an offender, who has been recommended for deportation by a Court or who has been sentenced to in excess of 12 months imprisonment, is serving a period of imprisonment which is due to be completed, the decision on whether he should be detained under Immigration Act powers (on completion of his custodial sentence) pending deportation must be made at senior caseworker level in CCD in advance of the case being transferred to CCD. It should be noted that there is no concept of dual detention in deportation cases (see 38.11.3).
This was supplemented by paragraph 38.11.3:
Immigration detention in deportation cases
Paragraph 2 (1) of Schedule 3 to the 1971 Act concerns the detention of a person who has been court recommended for deportation in the period following the end of his sentence pending the decision by the Secretary of State whether to make a deportation order. Paragraph 2 (2) of Schedule 3 defines the scope of the power to detain a person who has not been recommended for deportation by a court but who has been served with a notice of intention to deport (an appealable decision) in accordance with section 105 of the Nationality, Immigration and Asylum Act 2002, pending the making of a deportation order.
55.20 Temporary admission, release on restrictions and temporary release (bail)
Whilst a person who is served with a notice of illegal entry, notice of administrative removal, or is the subject of deportation action is liable to detention, such a person may, as an alternative to detention, be granted temporary admission or release on restrictions. The policy is that detention is used sparingly, and there is a presumption in favour of granting temporary admission or release on restrictions. Another alternative to detention is the granting of bail, which is covered separately in Chapter 57. The fundamental difference between temporary admission/release on restrictions and bail is that the former can be granted without the person concerned having to be detained, while the latter can only be granted once an individual has been detained and has applied for bail."
55.1.2 Criminal Casework Directorate Cases
Cases concerning foreign national prisoners dealt with by the Criminal Casework Directorate (CCD) are subject to a different policy than the general policy set out above in 55.1.1. Due to the clear imperative to protect the public from harm and the particular risk of absconding in these cases, the presumption in favour of temporary admission or temporary release does not apply where the deportation criteria are met. Instead the person will normally be detained, provided detention is, and continues to be, lawful. The deportation criteria are:-
For non-EEA cases a sentence of at least 12 months as either a single sentence or an aggregate of 2 or 3 sentences over the past five years; or a custodial sentence of any length for a serious drugs offence (see list below);
For EEA cases a sentence of at least 24 months;
A recommendation from the sentencing court
This is expanded upon in the following pages. Thus it is said, for example, that:-
Due to the clear imperative to protect the public from harm, the presumption of temporary admission or release does not apply in cases where the deportation criteria are met. In CCD cases concerning foreign national prisoners, because of the higher likelihood of risk of absconding and harm to the public on release, there is a presumption in favour of detention as long as there still is a realistic prospect of removal within a reasonable time scale
Caseworkers are then instructed to have regard to specified matters which "might make further detention unlawful"; and it is then said that "substantial weight" should be given to the risk of further offending or harm to the public indicated by the subjects' criminality. Where the offence which triggered deportation is included on the list at paragraph 55.3.1 (essentially serious crimes, including violence, sexual offences and drugs offences), it is said that the weight to be given to the risk of further offending or harm to the public is "particularly substantial". Paragraph 55.3 states:
Public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation the presumption in favour of temporary admission or temporary release will not apply the public protection imperative means that there is a presumption in favour of detention. However this presumption will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal.
In the case of serious criminal offences it is indicated that "in practice" release is likely to be appropriate "only in exceptional cases"; a point then developed in paragraph 55.3 at considerable length. There is also a list of crimes "where release from immigration detention or at the end of custody would be unlikely": these are mainly serious offences.
An unpublished policy
Anyone convicted of a sentence which appears in the list attached should not be considered for management by maintaining rigorous contact, under these instructions.
This list includes all violent offences, all sexual offences and all drug offences bar minor possession. ...
The attached list was headed, in bold capital letters:
List of recorded crimes where release from immigration detention or at the end of custody will not be appropriate
no acceptable explanation for the failure to publish the new policy whatever it was until 9 September 2008, when the revised Enforcement and Instructions Guidance finally was published. Indeed the documents show a continuing unease over very many months in the interim on the part of a number of officials at the situation that was being allowed to subsist. Mr Wood in effect admits (in paragraphs 83 and 84 of this statement) that the eventual publication of the policy was in fact occasioned by the revealed "inaccurate" statements of Ms Honeyman in the Abdi and Lumba litigation.
We record that this finding was not challenged before us.
The generic issues in these appeals
(1) Was the unpublished policy a blanket policy requiring detention of FNPs pending deportation in all circumstances, as contended by the Appellants, or a policy imposing a presumption of detention, as contended by the Home Secretary and as held by the judge?
(2) Is it open to the Secretary of State to formulate and to apply a policy under which there is either a blanket policy requiring detention or a rebuttable presumption in favour of detention?
(3) Is the Secretary of State under a duty to publish his policy in relation to the detention of FNPs?
(4) Is the application of an unpublished policy adopted by the Secretary of State that is at variance with his published policy unlawful?
(5) If it was not open to the Home Secretary to apply the unpublished policy, does that mean that the detention of a FNP pursuant to that policy was unlawful in every case, or only in a case where the FNP would not have been detained under the published policy?
(6) If the Appellants were unlawfully detained, irrespective of whether they might have been lawfully detained on the application of the published policy, but the Secretary of State establishes to the requisite standard of proof that they would have been detained if the published policy had been applied, are they nonetheless entitled to substantial damages?
(7) If the Appellants are not entitled to substantial or general damages, may exemplary damages be nonetheless awarded?
Previous advice has always been to detain in all circumstances even though this was against published detention policy.
Secondly, a draft policy submission of May 2007 referred to at paragraph 43.12 of Davis J's judgement included the following statements:
Since the foreign national prisoner issue first broke in April 2006 we have been detaining all [underlined] criminal cases where it is decided to pursue deportation.
legal advice is that those statements [viz. made to the House of Commons] were insufficiently unambiguous to constitute such a change of policy and that we would therefore almost certainly lose any challenge if this were our defence.
The following comment was rightly described by the judge as "as cynical as it is unedifying":
If we were to lose a test case, we could present any change in FNP detention practice as having been forced on us by the courts.
That may or may not be good politics: but it is deplorable practice, especially when it is seen that almost from day one the new unpublished policy was perceived in virtually all quarters within the department to be at least legally "vulnerable" and in some quarters positively to be untenable and legally invalid.
We entirely agree. However, the disclosure of such documents points to the Secretary of State's duty of candour having been fulfilled.
What was the unpublished policy?
108. . But overall I do not think I would be justified in concluding that what was operated here was a blanket policy of detention, admitting of no exceptions and allowing for no individual consideration of individual cases. The Home Office's investigations are, even now, not complete. Further, some though not many - of the disclosed contemporaneous e-mails would indicate that the policy was a presumptive policy, not a blanket policy. Moreover, as these five cases themselves show, individual consideration was being given to cases. Further again, Mr Wood's informal survey of caseworkers (as recorded in paragraph 70 of his witness statement of 31 October 2008) indicated that, of those responding, the "vast majority either correctly understood the policy that was intended to apply or were applying a policy that was more likely to result in release". I do not think I would be justified, in the absence of cross examination, in rejecting this.
109. My conclusion here is that the policy applied after April 2006, albeit inconsistently understood by caseworkers, was not designed to be a mandatory policy of detention of FNPs, permitting of no individual consideration of individual cases and of no exceptions to detention. It was a presumptive policy, admitting of exceptions whereby release from detention was capable of being authorised. Even so, the presumption described by Mr Wood, with no element of overstatement, as a "strong" presumption was intended to be very rigorously applied and flexibility, by reference to consideration of exceptional individual circumstances, clearly was to be limited, both by design and in practice. That is shown by the very few actual examples of release thus far identified by Mr Wood; by the contents of a significant number of the contemporaneous e-mails; and by Mr Wood's concession (in paragraph 11 of his witness statement of 31 October 2008) that the result of the change in the policy was that "the vast majority of FNPs who were to be deported were detained pending deportation". In other words, the proposition that such FNPs were never released pending removal shaded, in a Gilbert and Sullivan way, into the proposition that they were hardly ever released. Quite how that compares with the figures for detention of FNPs pending removal (whether or not after court recommendation) prior to April 2006 is not known: since no such figures were put before me.
The Wood review
the lessons to be learned from the series of events that led to the judgement of the High Court in Abdi and Others v Secretary of State for the Home Department (SSHD), which (in brief) held that the failure to publish and make accessible the revised detention policy for Foreign National Prisoners (FNPs) following the FNP crisis in April 2006 was unlawful and that the presumptive detention policy applied was itself unlawful.
the review identifies several factors contributing to the delay following the immediate period of fire fighting when the response was focused on putting the resources and systems in place to properly manage FNP referrals from prison and detaining those who had been released without consideration of deportation ("the 1013"). The number of staff allocated to criminal case working grew quickly but large numbers of those staff were inexperienced in deportation work. Training could not keep pace with recruitment and significant time and focus was (sic) needed to improve this position. In hindsight there was need for better investment in high performing and experienced staff (particularly managers). Guidance and instructions were passed on by word of mouth and there was a lack of ability to send "global" e-mails. This contributed to the confusion. There should have been formal advice in a submission to Ministers, but this was not provided. Nor was the problem formally brought to the attention of the Chief Executive. Policy should have been clarified very early and guidance issued to staff in writing. Those interviewed also report confusion as to who was responsible for the policy development.
Thus, the report identifies issues of accountability and ownership for policy decisions; communication between policy, operational and legal officials; lack of escalation of issues between UKBA Board and Ministers; lack of consistency in the approach to operational cases; and management issues of resourcing; training; and managing.
April May 2006
20. Most people recall the period in April and early May 2006 as one characterised by unbelievable pressure, and long hours, to grip the FNP situation and manage the situation of the "1013" FNPs released without consideration. The new Home Secretary made his intentions very clear in the House that no more FNPs would be released before they had been considered for deportation. He set out eight priority areas for "management" action to achieve our long-term policy goals on foreign national prisoners which were aimed at ensuring that FNPs were referred to the IND and consistently considered for deportation against the correct criteria.
21. During this time, senior officials recall meetings with the Home Secretary in which he re-iterated his concern for public protection requirement to detain FNPs until deportation. The situation was very pressurised at the time, with intense media and Parliamentary scrutiny. The meetings were often called at short notice, sometimes at weekends, and were usually very limited in who could attend. No minutes, or notes of decisions made at these meetings now exist. It is recalled that the Home Secretary's office at the time did not send regular minutes or notes of meetings because of concerns about leaks to the press, of which there were several in this period.
25. The extent of the political imperative, the enormity of the task and the pressure managers (in particular) were under in IND following April 2006 cannot be underestimated. Civil Servants who had been in the Home Office for many years and worked through a number of crises recall this period as more challenging than any other period the department has faced. This was at least in part due to the nature of the issue: actually deporting FNPs is a very complex process with a number of challenging aspects and it took many months before the implications of the new focus on considering all FNPs for deportation and detaining them until deportation were fully understood and resourced. The specific policy implications of the different approach to detaining FNPs were not discussed at the IND Board, although there would have been various discussions regarding the re-detention of the 1013 and the transfer of resources.
26. At the very start of the crisis (25 April 2006), concerns were expressed by operational staff and managers to policy officials about the basis on which detention of FNPs was lawful in the context of the previous operational processes being stretched to accommodate Ministerial imperatives. Managers within CCD approached HOLAB who advised on the statutory basis for detention, the requirement to serve the correct papers prior to detention, restraints on the length of detention pending removal (the Hardial Singh Principles) and the need for individual consideration of cases prior to detention. In this context, HOLAB also advised that detention needed to be in accordance with the IND's stated policy in detention, as set out in the 1998 and 2002 White Papers.
30. In the first weeks following the crisis, it is apparent that officials were seeking to grip the clear Ministerial imperatives and attempting to develop processes which would allow the public protection necessity to be met while meeting the requirements of the law. A large number of staff were moved to work on Criminal Casework and the units became seriously challenged by the number of referrals. Concerns were being expressed about the lack of policy support for the decisions. FNPs were released throughout the period (albeit in small numbers in the 18 months following the crisis). The focus was necessarily on ensuring that all FNPs were considered for deportation, and not released until this consideration had been completed. It was understood by senior management that the Home Secretary's intention was that, following a decision to deport, the obvious public protection imperative would necessitate continued detention until deportation in as many cases as possible and legal advice was sought, and given, around Hardial Singh considerations. Any other interpretation of the Home Secretary's statements would not have been logical. Nonetheless, legal advice continued to be clear that detention needed to be in line with public policy.
June -- September 2006
35. Throughout this period, operational managers and the Director of CCD were expressing a desire to work within legal frameworks and in line with published policy as well as working to avoid FNPs being released prior to consideration of deportation, as clearly set out by the Ministers' statements. In this period there were a number of meetings between operational and policy colleagues to discuss the requirements of a detention policy which reflected practice. It was hoped that a submission could be put to the Immigration Minister prior to his summer vacation.
- In previous months, to maximise public protection, IND had been detaining all criminal cases where it had been decided to pursue deportation but that this position was not thought to be tenable and that IND was very vulnerable to legal challenge.
- In order to reduce the legal and reputational risks, it was necessary to amend both the current practice and published policy.
- If current practice was brought in line with published policy, it was likely that IND would need to release a large number of FNPs.
- Instead, the policy should be amended for FNPs to say that "while we will generally seek alternatives to detention we will not if there is a risk to public protection if we do not detain".
- OASyS (NOMS Risk Assessment on reoffending) thresholds for risk assessment could be used for ascertaining risk. It was argued, on the basis of the modelling undertaken, that this would not mean having to release a large number of FNPs but it was impossible to say what kinds of FNP would need to be released.
45. During this period, it is clear that the policy on the detention of FNPs was "inconsistently understood by caseworkers", since there was nothing clearly written down to instruct them what policy to apply. For example, a training manual in use in October 2006 sets out that there was not a presumption that FNPs completing their sentences should continue to be detained. Officials recall that there had not been time or resources to update the training manual but it is also likely that to update the manual would have been difficult given the lack of a written alternative policy.
46. There is evidence of continued concerns from operational staff about the basis on which FNPs were being detained post-sentence. It is clear from an e-mail chain in December 2006 that CCD staff in Liverpool were applying the published detention policy and releasing people on bail where there was no immediate prospect of them being removed. CCD Croydon managers visiting Liverpool made clear to caseworkers the approach which should be applied. However, these managers raised the issue of consistency of practice and the danger of unlawful detentions with the Director of CCD. In response to this, the Director of CCD said:
"The Home Sec has been very clear in his statements that there will be a presumption of detention in all FNP cases until removal. We need to ensure that all staff are applying this."
47. A similar concern about the basis of detention for FNPs from countries to which it was difficult to remove to was raised by staff at Gatwick Removals Facilitation Unit in January 2007. The individual raising this concern (an Inspector) had previously attempted to raise the issue with both the Senior Director of Enforcement and the Director of CCD and was concerned by the lack of response he had received. In replying to this concern, a CCD manager wrote that he sympathised but stated that CCD "had been given a very clear steer instruction from Ministers that we are to detain all foreign national prisoners". He also assured the enforcement staff that the issues under consideration at a very senior level. The concern was then escalated by CCD to the IND Head of Policy, who stated that "the policy and practice on detention of FNPs is monitored by senior management in IND, and we are advised by LAB and by Counsel." The operational staff continued to press for an explanation and written evidence of the lawfulness of detaining those from nationalities which they were not able to remove. Following a subsequent meeting with an operational manager to discuss this issue, the IND Head of Policy mentioned the Home Secretary's statement:
"that FNPs who meets the criteria for deportation should not be released from prison before consideration of deportation is complete. This is a matter of public policy and public protection."
The Detention Services Policy lead had also pointed out the relevant statutory provisions for detention pending removal and had highlighted that as a point of policy, no nationalities were considered irremovable.
48. It seems, therefore, that the Home Secretary's statements to Parliament were now being relied upon as the basis for a new presumptive detention policy. In early 2007, the newly formed Operational Policy and Process Unit (OPPU) started to draft the first CCD Process Communication (PC) on detention, to make clear the grounds on which FNPs were detained and the process of carrying out detention reviews. Early drafts of this communication included the following statement:
"The Home Secretary has made clear that foreign national prisoners who meet the criteria for deportation, should be detained until they are deported or until a decision has been made not to deport them."
49. This precipitated a discussion between operational managers, a policy official in the DDG's office, HOLAB and the Detention Services policy lead, about the extent of support for a presumptive detention policy which could be inferred from the Home Secretary's statements. CCD operational managers raised the point that none of the Home Secretary's statements clearly stated that FNPs would be detained until deportation. They highlighted that there could be a significant period of time following the decision to deport until deportation had actually taken place. The Rt. Hon. John Reid's statement before the Home Affairs Committee on 12 December 2006 was circulated, in which he set out the challenges faced in completing the consideration process, including Judicial Reviews and the judicial process. In this context, he had said:
"In the meantime, I am faced with the question, would the public expect me to release onto the streets prisoners of foreign nationality who have committed serious offences? My judgement is, no, the public would not and, therefore, I made the decision, as I said to this Committee, that, with all of the constraints in prison places, all of the shortages we face and all of the difficulties involved in that decision, that these people ought to be kept in detention until we have fully considered their deportation."
51. the final version (of the Process Communication) stated that:
"The Home Secretary has made clear that foreign national prisoners, who meet the criteria for deportation, should be detained until their deportation has been considered."
52. This PC was issued to CCD staff in late February 2007. As a result, a senior caseworker in Liverpool raised a question about whether temporary admission could now be authorised following consideration of deportation if the individual was difficult to remove. In other words, the question was whether the PC authorised a more lenient approach to detention than had recently been undertaken within CCD. The answer from OPPU was that this was not the intention but that the PC was intended to put into writing an approach which was already being followed. The reason for including the Ministerial statement was that this was the basis on which FNPs were being detained since "it has been confirmed that ministers want detention to continue until deportation".
58. A submission was sent in the Chief Executive's name to the Immigration Minister on 7 June 2007 setting out a basis whereby low risk FNPs could be released with Contact Management and Electronic Monitoring arrangements. A series of meetings took place with Ministers and the Home Secretary agreed a strategy which she conveyed to the Prime Minister on 19 September 2007. This provided a framework for the consideration of release of low risk FNPs and was called "Operation Cullen". This provided a list of offences which would be excluded from consideration for the release of FNPs under the policy. This instruction was conveyed to caseworkers (on) 8 November 2007. Operation Cullen was not published, and the published detention policy was not changed. Operation Cullen could not have been published without the policy being changed as it would not have made sense (a policy stating there was a presumption of release and then Cullen saying we should release some low risk FNPs). Cullen was thus, in essence, guidance for caseworkers.
59. The Cullen processes did not result in many releases as, apart from the offence based limitations, FNPs had to have a sponsor willing to support them and confirm that in writing. The first Cullen policy resulted in three FNPs being released from detention. No further work continued at this time in developing a detention policy for publication; all energy having been transferred into securing a policy for release which was achieved.
In May 2006, the former Home Secretary promised that no FNP would be released from detention without being considered for deportation. This promise has been maintained. In addition we have interpreted this as meaning that where deportation is being pursued FNPs should normally be detained until they have been deported. Until recently, we were confident that this was a sustainable position.
68. The documents served in the proceedings demonstrated that we had received legal advice on several occasions from 2006 to 2008 indicating the need to publish a detention policy reflecting our practice, that caseworkers and managers were agitating and concerned about this, that caseworkers were giving individual consideration to cases, but there was not a clear and shared understanding of the policy which had led to different approaches.
Since April 2006 the BIA has been applying a near blanket ban on release regardless of whether removal can be achieved and the level of risk to the public linked to the nature of the FNP's original offence.
(1) The unpublished, or secret, policy was not a "blanket" policy;
(2) The secret policy was unlawful, because, although not a "blanket" policy in the sense that it excluded any individual consideration (paragraph 108), -
a) it was in "presumptive" form, which was not permitted by the statute; and
b) it was "not sufficiently published or accessible, in the public law sense" (paragraph 110).
(3) Under the heading "causation" (paragraphs 129ff), the Defendant was entitled as a matter of principle to show that the unlawful decision had not "caused" the detention, the burden of proof being on the Defendant (paragraph 151); in the cases in which he was required to examine the facts the Secretary of State had satisfied that burden;
(4) Accordingly, the issue of damages did not arise;
(5) He would not in any event have granted exemplary damages.
(1) It is now clear that the policy as applied at least from the time of Cullen 1 effectively operated on a blanket basis, for reasons that have already been given. The Wood review has led us to differ from the judge's finding that the unpublished policy was one of presumption.
(2) Although a policy involving a presumption of detention is not in itself necessarily unlawful, a policy which effectively operates on a blanket basis is unlawful.
(3) In any event, 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.
(5) In the two cases before us on the facts, the materiality was not established.
(6) Accordingly, we agree with the judge that the issue of damages does not arise.
(7) We also agree that, in all the circumstances, an award of exemplary damages would not in any event have been appropriate.
If a court judges that in making his decision to detain, an immigration officer failed to take into account matters of material significance (viz. he has overlooked relevant features of internal policy or paid no regard to the fact that the prospective detainee is a child protected by Article 37(b) of the UN Convention on the Rights of the Child), then he will have strayed outside his wide ranging powers. As a result he will have had "no power" to authorise the detention in question. This is what the doctrine of ultra vires is all about . (paragraph 111)
Law, Policy and Presumptions
Policy and Practice
The court's proper sphere is illegality, not maladministration. If the earlier decisions were unlawful, it matters little whether that was the result of bad faith, bad luck, or sheer muddle. It is the unlawfulness, not the cause of it, which justifies the court's intervention, and provides the basis for the remedy. Conversely, if the 2004 decisions were otherwise unimpeachable in law, I find it hard to see why even "flagrant" incompetence at an earlier stage should provide grounds for the court's (as opposed to the ombudsman's) intervention. (R (S) v SSHD  EWCA Civ 546 paragraph 41)
Policy and law
Presumptions and R (Sedrati) v Home Secretary
"Given then, on the authority of Sedrati, that as a matter of law paragraph 2 of Schedule 3 does not create a presumption in favour of detention, the obvious question that follows is: how can such a presumption be created as a matter of executive decision?" (paragraph 114)
112. . Article 5 para. 1 (f) (art. 5-1-f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 para. 1 (f) (art. 5-1-f) provides a different level of protection from Article 5 para. 1 (c) (art. 5-1-c). Indeed, all that is required under this provision (art. 5-1-f) is that "action is being taken with a view to deportation". It is therefore immaterial, for the purposes of Article 5 para. 1 (f) (art. 5-1-f), whether the underlying decision to expel can be justified under national or Convention law.
See too Saadi  UKHL 41, and subsequently (2008) 47 EHRR 17:
72. Similarly, where a person has been detained under Article 5 § 1(f), the Grand Chamber, interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained "with a view to deportation", that is, as long as "action [was] being taken with a view to deportation", there was no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing (Chahal, cited above, § 112). The Grand Chamber further held in Chahal that the principle of proportionality applied to detention under Article 5 § 1(f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held (§ 113) that "any deprivation of liberty under Article 5 § 1(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible ..." (and see also Gebremedhin [Gaberamadine] v. France, no. 25389/05, § 74, ECHR 2007-...).
A minister is entitled to adopt from time to time general policies according to which he proposes to exercise his discretion, and there is nothing to preclude him from announcing such policies; it may indeed be of great convenience to the public that he should do so. (op cit paragraph 7 note 14).
where detention is involved both publication of the applicable policy and a degree of precision in stating that policy are necessary: the more so where there is a departure from a previously published policy.
As we have made clear already, it is the latter point the departure from published policy - which is crucial in our view. We respectfully disagree with the first part of that statement. The judge found authority for the wider proposition, in the judgment of the ECHR in The Sunday Times v UK  EHRR 245. He also referred to a statement of Sedley LJ as to the "cogent objections" to the operation of undisclosed policies affecting individual entitlements (R (Begbie) v Secretary of State for Education and Employment  1 WLR 1115 at p.1132); and to one of Stanley Burnton J, to the effect that consistency with "the constitutional imperative" that statute law be made known required that "the government should not withhold information about its policy relating to the exercise of a power conferred by Statute" (R (Salih) v Secretary of State of the Home Department  EWHC 2273 Admin, paragraph 52).
49. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct...
The words "in accordance with the law" appear, of course, in Article 8(2). Plainly the language of Article 5(1) "in accordance with a procedure prescribed by law" is not the same, but the two provisions impose, I think, kindred requirements: "to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules". Here the "rules" are the Hardial Singh principles. Their fulfilment in any given case saves a detention from the vice of arbitrariness. A system of regular monitoring is, no doubt, a highly desirable means of seeing that the principles are indeed fulfilled. But it is not itself one of those principles.... (paragraph 33)
"Our domestic law comprehends both the provisions of Sch 2 to the Immigration Act 1971 and the Secretary of State's published policy, which under principles of public law, he is obliged to follow." (para 54, emphasis added)
The court (quite possibly reflecting the argument as it had been developed before it), thus appears to have accepted as a starting-point, without further analysis, that at least in the context of Article 5 published policy was equivalent to law, and that unpublished policy, at least so far as inconsistent with published policy, was unlawful.
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. (paragraph 68)
130. The essential submission on the part of the claimants was simple. Each of these claimants was, they say, detained (or as the case may be kept in detention) under an unlawful policy. Therefore they were unlawfully detained. Unlawful detention is to be equated with false imprisonment: and accordingly, and without more, they are entitled to damages for the period of their unlawful detention...
131. Mr Tam did not seek to advance before me an argument that there may be some categories of unlawful detention case, properly so styled, which do not sound in damages. Rather his submission was that where the unlawful policy was of no causative effect (because detention would still have been lawfully directed irrespective of the new policy) then the detention is not to be styled as unlawful detention at all.
132. So there are two stages to the argument. The first is whether, as a matter of principle, it is open to the defendant to rely on an argument based on causation. The second is (if it is so open to the defendant) whether on the individual facts of each of these five cases the claimant concerned would in any event have been lawfully detained quite apart from the new policy. (paras 130-2, emphasis added)
whether the introduction of the unlawful and unpublished policy in fact caused each claimant unjustifiably and unlawfully to be detained. (paragraph 147)
110. (Counsel for the Home Secretary) also submitted that we should bear in mind the consideration that, when the Administrative Court quashes a decision of an immigration officer on the grounds of public law error, there will be nothing to stop him making the same decision, this time by a lawful route. It appears to me that the answer to this objection lies in the field of causation...."
(1) Nadarajah (above), where it was held that, if the officers' decisions had not been tainted by failure to disclose the relevant policy, the applicants would have started the legal proceedings which under the secret policy were needed to prevent their detention; and
(2) Saadi  1 WLR 3131, where it was held by the House of Lords that failure to give the right reason for the detention, although procedurally inept, did not affect the legality of the detention.
It is a condition of lawful arrest that the party arrested should know on what charge or on suspicion of what crime he is arrested: and, therefore, just as a private person arresting on suspicion must acquaint the party with the cause of his arrest, so must a policeman arresting without warrant on suspicion state at the time (unless the party is already acquainted with it), on what charge the arrest is being made or at least inform him of the facts which are said to constitute a crime on his part.
In these circumstances the judge held that the respondent was being unlawfully detained as from 5.25am. I agree. Section 34(1) of the Act is mandatory. As already stated, it provides that a person shall not be kept in police detention except in accordance with the relevant provisions of the Act. The respondent was detained at 11.25pm on the 30th July, so that by section 40(1)(b) a review of his detention should have taken place before 5.25am on the 31st July. No such review took place. It follows, as I see it, that from that time the respondent was not being detained in accordance with the relevant provisions of the Act. It further follows from section 34(1) that his detention was thereafter unlawful until some event occurred to make it lawful.
Clarke LJ approved the statement in a supplement to Clerk & Lindsell on Torts:
"In relation to detention under the Act of 1984, the situation is quite different. On the expiry of the prescribed period of detention, any authority to continue the detention of the arrested person ceases to exist and continued detention is unlawful."
We therefore respectfully agree with Laws LJ's explanation of Roberts in SK:
25. Thus in Roberts the requirement of periodic review, on the proper construction of the statute, had to be satisfied as a condition precedent to the legality of the suspect's detention. It was made so by the express terms of s.34(1) [of the Police and Criminal Evidence Act 1984].
Compensatory or nominal damages?
" the proper approach is to regard an injuria or wrong as entitling the claimant to a judgment for damages in his favour even without loss or damage, but where there is no loss or damage such judgment will be for nominal damages only" (McGregor on Damages p.359).
"... the reason why the continued detention was unlawful was that no review was carried out. The wrong was not, however, the failure to carry out the review but the continued detention. If the wrong had not been committed the plaintiff would not have been detained between 5.25am and 7.45am. It follows that, as a matter of principle, he is entitled to compensation for having been detained for those 2 hours and 20 minutes." (p 668H)
... for a period of 2 hours and 20 minutes during which he was asleep, especially in circumstances in which if a review had been carried out, his detention would have been lawful. (p 669H)
This appears to be authority that the mere fact that a lawful decision would have led to the same consequence is not necessarily a reason for limiting the award to nominal damages. On the other hand, the court accepted this as a material factor in assessing the amount of the award.
38. In the Court's view, paragraph 5 of Article 5 (art. 5-5) is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4). It does not prohibit the Contracting States from making the award of compensation dependent upon the ability of the person concerned to show damage resulting from the breach. In the context of Article 5 § 5 (art. 5-5), as for that of Article 25 (art. 25) (see, inter alia, the Huvig judgment of 24 April 1990, Series A no. 176-B, pp. 56-57, § 35), the status of "victim" may exist even where there is no damage, but there can be no question of "compensation" where there is no pecuniary or non-pecuniary damage to compensate.
ISSUES SPECIFIC TO THE APPELLANTS
82. Mr Lumba, a citizen of the Democratic Republic of Congo, entered the United Kingdom unlawfully on 10 April 1994. He claimed asylum. This was eventually refused, but he was given leave to remain until 13 April 2004.
83. On 26 February 1998 he was convicted of a count of assault occasioning actual bodily harm and received a custodial sentence. He was convicted subsequently, on separate occasions, of counts of disorderly behaviour and threatening behaviour. Then on 24 April 2001 he was convicted of a count of assault occasioning actual bodily harm and was sentenced to 6 months imprisonment. On 29 August 200l (in the interim having been convicted for minor offences of theft) he was sentenced to 4 months imprisonment for assaulting a police officer. On 24 October 2003 he was convicted of a count of inflicting grievous bodily harm with intent, which involved striking a man on the head with a brick. A probation report noted no sign of regret or remorse and "an alarming pattern of reoffending in relation to violent offending". He was sentenced on 12 January 2004 to 4 years imprisonment. He received several adjudications for bad behaviour while in prison (including for fighting).
84. On 20 January 2004 Mr Lumba lodged an application for indefinite leave to remain. However, by letter dated 3 April 2006 the Secretary of State informed Mr Lumba of the intention to deport him, and formal notice was thereafter given to him and, in due course, his wife. He was due to be released from prison on 23 June 2006 but by letter dated 22 June 2006 he was notified that he was to be detained under immigration powers.
85. He pursued an appeal against deportation. The appeal was dismissed on 15 December 2006, the Immigration Judge noting the "appalling criminal record" and being unpersuaded as to the assertions of illness. In the meantime, it does not appear that regular, or any, detention reviews were introduced before February 2007.
86. Lack of co-operation on the part of Mr Lumba in helping obtain travel documentation was noted. On 14 March 2007 a deportation order was signed. The Democratic Republic of Congo Embassy was pressed by the Home Office for progress. Eventually, directions for removal were set for 20 August 2007. Five days before that, fresh representations were made by Mr Lumba that he would be at risk if returned. Those were rejected. He commenced judicial review proceedings, which were then ordered by consent to be stayed pending the decision in the pending BK case (relating to removal of failed asylum seekers to the Democratic Republic of Congo). In the meantime, detention reviews maintained a decision to detain on the principal ground of very high risk of absconding and also risk of reoffending.
87. The present proceedings were commenced on 18 October 2007. Thereafter various bail applications were refused by Immigration Judges: one, not unreasonably, noting that Mr Lumba had shown a "blatant disregard" for some aspects of English law. In the meantime, the renewal application for permission to apply for judicial review was adjourned, pending the final outcome of the BK case. On 14 May 2008, Collins J refused to grant bail.
88. On 24 June 2008, his application came before Collins J .... In a fully reasoned judgment Collins J reviewed relevant authorities such as Hardial Singh and I and A Collins J expressed himself as "entirely satisfied in the circumstance of this case that there is a real risk of absconding". Collins J concluded that continued detention then remained lawful (the decision of the Court of Appeal in the BK case by then being awaited). Collins J then went on to note the "disturbing development" raised during the hearing before him, concerning the changed approach to the detention of FNPs; considered that aspect; but indicated that he remained satisfied that it was proper to maintain detention. But he ruled that the issue of the lawfulness of the past detentions of Mr Lumba would have to be considered at a further hearing (which, as I have already indicated, is how the matter came before me).
198. Mr Lumba was held in immigration detention on 23 June 2006 and has been in detention up to the time of the hearing before me a period of nearly 2½ years. His appeal rights were exhausted on 27 December 2006. The background of his (very serious) criminality while in the United Kingdom appears from what I have summarised earlier in this judgment.
199. There can be no doubt that Mr Lumba would, if released, pose a serious risk of (serious ) reoffending, to the potential serious harm of members of the public, and would pose a high risk of absconding.
200. I think I can take his case quite shortly, notwithstanding the elaborate arguments advanced on his behalf. I can do so primarily because of the judgment of Collins J in this case given on 4 July 2008. Collins J necessarily considered the matter by reference to the old policy, which indeed (together with the Cullen criteria) was the one in effect identified in the initial evidence of the Secretary of State put before him. Collins J applied the principles of Hardial Singh and I and A. Collins J noted the various failed bail applications on the part of Mr Lumba, including a previous bail application refused by Collins J himself. He noted that there was pending for consideration by the Court of Appeal the case of returns to the Democratic Republic of Congo in the BK case. Collins J found that the continued detention in the case of Mr Lumba nevertheless as at that time was lawful, concluding that there was a real risk of absconding.
201. In the course of his judgment Collins J, said that the dangers to the public of release and the risk of absconding are always highly relevant considerations. He said this at paragraph 64:
"64. I have already indicated that I am entirely satisfied in the circumstances of this case that there is a real risk of absconding. That means that to release would be likely to undermine the whole purpose of deportation, which is clearly in the public interest and for the public good, as the Secretary of State has decided; and that decision has been upheld on appeal."
He also said this at paragraph 78:-
"In all cases it is surely necessary to consider whether the individual is sufficiently high risk, notwithstanding the circumstances which led to his imprisonment."
He went on to say this at paragraph 86 and 87:-
"86. It seems to me that I have to consider for myself whether detention, applying the correct principles, based on Hardial Singh, is lawful. Mr Goodman submits that it is not for the court to remedy any defects in the process or any unlawfulness perpetrated by the Secretary of State. That is not what the court is doing. The court has to take account not only of the presumption in favour of liberty but also has to take into account the circumstances, the danger to the public if the man is released, the risk of absconding so that deportation is frustrated and the reasonableness, on the relevant principles, of continuing detention. That does not depend upon any matters raised by, or possible mistakes made by, the Secretary of State.
87. In SK Munby J suggested that it was not appropriate for the court to rely on matters not raised by the individual officer in objecting to bail. In that case the matter that was not relied on was the risk of absconding. I am bound to say that I do not agree with that. It seems to me that the court is not only entitled to, but is bound to take into account all relevant material in deciding for itself whether detention is or is not lawful, both that which is favourable to and that which is unfavourable to a particular individual."
As will be gathered, I agree with that approach of Collins J: which also seems to me to be entirely consistent not only with A but also with the subsequent approach of the Court of Appeal in SK.
202. In my view, if continued detention after July 2008 can be justified applying (among other things) Hardial Singh principles, as Collins J has decided, then it seems to me virtually to follow that continued detention before that date is likewise justified by reference to those principles. In any event, having reviewed the evidence for myself, I conclude that it was and that such detention was reasonable and lawful.
203. I further conclude that there is nothing in the evidence to show that Mr Lumba was initially, or thereafter, detained by application of the new policy. It is clear that his case was regularly reviewed after February 2007, with individuated consideration being given to release: these reviews are fully documented in witness statements of Ms Honeyman made in the proceedings. A high risk of absconding and a high risk of reoffending was, entirely justifiably, assessed. I also consider, in line with the reasons of Collins J, that there was at all stages indeed a prospect of removal within a reasonable period. There was no lack of due expedition. I have no hesitation in concluding that not only could the defendant properly and lawfully detain Mr Lumba, but the defendant properly and lawfully did do.
I am satisfied that the appellant has shown a blatant disregard for the laws of this country, both immigration and general law, with respect to his criminal activities. I do not consider he would abide by any conditions of bail nor do I consider that his nephew with whom he has only an intermittent contact would ... be able to exert any influence over him to ensure he would respond to conditions of bail. I notice the two judicial reviews and the first hearing in April. I take into account that removal is not imminent but consider on balance that as he has shown violence in his past criminal activities he should continue to be detained. I consider there is the possibility of his committing further offences.
20. In the Court's view, despite the unfortunate legal history of this case since January 2003, the appropriate period for considering the delay for the purpose of these applications is from Q's withdrawal in March 2006 of his appeal against deportation, a period of six or seven months. Until then the Secretary could not know whether or when he would have power to deport him and, with it, a corresponding obligation to engage with the Algerian authorities as to the details they required in his case as to his identity and family connections etc
35. What Chahal (1996) 23 EHRR 413 illustrates is that a detained asylum seeker cannot invoke the delay necessarily occasioned by his own asylum claim (and any subsequent appeal(s)) to contend that his removal is clearly "not going to be possible within a reasonable time", so that he must be released. That, however, is by no means to say that where, as here, a detainee, whom for reasons quite other than his asylum claim the Secretary of State is unable to remove, chooses during his detention to claim asylum, that claim, whilst unresolved, precludes his asserting that limitation 2 of the Hardial Singh principles is not satisfied.
Dyson LJ agreed:
As regards the relevance of the appellant's asylum claim and appeal, I agree that for the reasons given by Simon Brown LJ, this is not material to the reasonableness of the length of detention.
54. I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making.
Longmore LJ agreed with the judgment of Toulson LJ. Keene LJ broadly agreed, but added comments of his own.
77. Mr Mighty was born in Jamaica on 18 November 1980. He arrived in the United Kingdom on 4 December 1992, initially being given 6 months leave to enter as a visitor. Various applications thereafter for leave to remain failed; however on 10 February 2003 he was granted indefinite leave to remain as part of the seven year overstayer concession. A subsequent application for naturalisation was refused in 2005.
78. He has been convicted of 14 offences on 11 occasions. In particular, on 23 May 2003 he was convicted on counts of robbery and possession of a Class A drug with intent to supply and was sentenced to 3½ years imprisonment on 27 June 2003. On release on licence, he committed a driving offence and was recalled to prison. He had received a further custodial sentence for this on 30 May 2005. He was released on 31 March 2006.
79. On 9 May 2006 he was notified of a decision by the Secretary of State to deport him. On 19 May 2006 he was detained. An appeal against the decision was unsuccessful and all appeal rights were exhausted by 20 November 2006. An application for bail had been refused on 27 September 2006.
80. A further application for bail was unsuccessful. On 2 November 2006 he attempted with others to escape from detention (apparently while in a prison van). In respect of this he was subsequently convicted of counts of attempting to escape and assault occasioning actual bodily harm on 6 August 2007 and sentenced to 6 months imprisonment.
81. A deportation order was signed on 15 December 2006. An application for a travel document was submitted to the Jamaican High Commission and there was an interview on 27 November 2007. He remained in detention, with regular reviews: the decisions to continue detention included, as reasons, risk of absconding and risk of reoffending, against an assessment that his removal to Jamaica was imminent. An application for bail was refused on 19 February 2008. He commenced the present proceedings on 29 May 2008. He was finally released on bail by an Immigration Judge on 28 July 2008.
189. Mr Mighty's detention under paragraph 2 of Schedule 3 commenced on 19 May 2006. His appeal rights were exhausted on 20 November 2006. He was released on bail on 28 July 2008: a period of over 2 years and 2 months' from initial detention. Thereafter, I add, it seems that he has now been charged with an offence of possession of a class A drug with intent to supply, committed after his release, and is awaiting potential committal for trial.
190. The essence of his claim, he having commenced proceedings on 29 May 2008, was that his detention was for a longer than reasonable period; that there had been no prospect of deporting him within a reasonable period of time; that he was unlikely to abscond if released; and generally, on Hardial Singh principles, that he should have been released. The amended grounds also of course attack the new policy.
191. That Mr Mighty could properly have been detained and was properly detained in the first instance, if applying the old policy, seems to me to be plain. He had a very bad record of serious criminality, with a very high risk of reoffending, and there was a high risk of absconding (illustrated further by his attempt to escape while in detention). It is to be noted that bail was refused on these grounds by Immigration Judges on numerous occasions which supports what in my view is also plain, namely that such risks continued.
192. The question remains as to whether he was detained for a longer than reasonable period or (a linked issue) whether there had been no prospect of deporting him within a reasonable period of time. Mr Macdonald suggested that he should have been released after one year's detention.
193. The evidence in this case was relatively limited. But it is sufficient to show that Mr Mighty's case was reviewed on an individuated basis. It also shows that contact was maintained by the defendant with the Jamaican authorities with a view to securing removal. Ultimately, after an application on 18 September 2007, an interview was arranged with the Jamaican Embassy on 27 November 2007 to secure the necessary travel documentation. A monthly progress report of the CCD of 18 January 2008 indicated that Mr Mighty would be kept in detention because of a risk of absconding, because "it will enable us to affect your removal from the United Kingdom" and because "your release is not considered conducive to the public good". This position was thereafter maintained until eventually he was released on bail on 28 July 2008.
194. There is no very detailed evidence to show that Mr Mighty, his appeal rights having been exhausted, failed to cooperate. However, by a letter from the defendant dated 12 May 2008, it was recorded that in March and July 2007 Mr Mighty failed to comply with requests for information which might lead to the issue of a travel document and he only completed the necessary forms on 21 August 2007. It is also the case, as I see it, that, inevitably, he would have been remanded or detained, in the aftermath of the attempt to escape and assault occasioning actual bodily harm, in respect of which he was convicted on 6 August 2007 and sentenced to 6 months' imprisonment. Indeed the defendant's letter of 12 May 2008 makes that practical point. I would, all the same, have appreciated rather more evidence than was put before me to show the defendant's attempts to gain the necessary travel documents before the autumn of 2007 and thereafter. It may also be noted that throughout Mr Mighty had been pursuing an application to the European Court of Human Rights. Indeed that was relied on by his solicitors as showing no reasonable prospect of removal within a reasonable period; which, on Hardial Singh principles, does not follow.
195. In my view, on the evidence, the Secretary of State was justified in detaining, and in continuing the detention of Mr Mighty until he was released on 28 July 2008. Given the high risk of (serious) reoffending, the high risk of absconding, set also in the context of the escape incident for which he was convicted on 6 August 2007 and sentenced to 6 months' imprisonment, and the initial lack of cooperation I think the period of detention was reasonable and justified on Hardial Singh principles.
196. There is also nothing in the papers before me to indicate that the overall decision to detain, and keep in detention, was influenced, or "infected" as Mr Macdonald put it, by the new policy: on the contrary, the papers indicate that, generally speaking, the approach applied to Mr Mighty was in fact conducted by an assessment consistent with the old policy. Accordingly, I am satisfied that Mr Mighty would have been and was kept in detention irrespective of the new policy, and that such detention was lawful and justifiable.
197. I conclude that his claim for damages for unlawful detention fails.
The Applicant presents as a 27-year old citizen of Jamaica who arrived in the UK in December 1992 as a lawful visitor and has a history of serious criminal offending, unreliability, and non-cooperation, in that:
- he has convictions on 11 occasions for 14 offences and these include a conviction on 23rd of May 2003 at Kingston Crown Court for Robbery and Possession with Intent to Supply for which he received a custodial sentence of 3 ½ years.
- He was most recently convicted on 6 August 2007 of ABH and also [significantly going to the issue of suitability for bail] of Attempting to Escape from Lawful Custody, for which he was sentenced to 6 months' imprisonment;
- during his time in administrative detention he has exhibited disruptive and un-co-operative conduct by being part of a hunger strike, barricading himself in a room and destroying property.
This case has been considered under the current criteria, however, [KM] should not be released as his removal is considered to be imminent and his conviction for attempting to escape lawful custody demonstrates non-compliance.
A senior executive officer commented as follows:
Whilst I agree with the reasoning behind maintaining detention, in that [KM] presents a serious risk of absconding, we need to be clear about the imminence of his removal. It is not imminent, as such, although I have considered that we have applied for and are awaiting an ETD -- we are progressing the case to removal, and there are no other barriers. Taking progress into account and also the very serious nature of his offences I consider that removal will be achievable within a reasonable period and that detention is proportionate to the risk that he may abscond.
The Assistant Director of the CCD gave authority to maintain detention adding the following comment:
There is a real prospect of obtaining an ETD within a reasonable timescale and the subject is unlikely to comply with reporting restrictions at this late stage in the deportation process.
[KM] should not be released as his removal is considered to be imminent and his conviction for attempting to escape lawful custody demonstrates non-compliance.
This is confirmed by an Immigration Judge at his bail hearing which was refused on 16/11/2007, who quotes "I am not satisfied that the applicant would comply with any conditions of bail. He has a significant criminal history and has behaved violently in the past has made an attempt to escape from custody previously. The only bar to removal is the ETD and I accept that the delay in obtaining that is solely due to the applicant's disruptive behaviour".
Based on the above it is recommended that he be further held in IS detention which will assist in his removal when his ETD is approved
This case has been assessed for its suitability for release under current policy.
The SEO commented:
It is clear from the history above but this man presents a significant risk of absconding. We are now well advanced with obtaining an ETD and taking particular account of the serious conviction I consider that, on all the known facts that detention is proportionate to the risk of absconding and that removal within a reasonable period remains in prospect.
Please do not rely mainly on quotes from adjudicator/IJ rulings in future reviews. Their findings are of course important (and likely to be persuasive) but we must ensure that we have considered the facts ourselves on behalf of the S of S when considering whether detention under the Immigration Act is the right decision in terms of the law and application of policy.
I agree that detention remains appropriate for the reasons given above. I note particularly that [KM] is a serious and persistent offender who presents a risk of re-offending and of harm to the public. He has previously escaped from lawful custody. I am satisfied that there is a serious risk he would fail to comply with terms of his release as his history suggests someone who has little regard for the law and would not wish to keep in touch with the authorities. His case has also reached the point where he knows that we have a realistic prospect of removal and he is unlikely to comply with immigration control. Whilst we do not have a document yet, good supporting evidence has been produced in a high-level intervention are [sic] being made with the Jamaican authorities.
where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages.
The court set out certain points to be explained to the jury, including the following:
(c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public .
205. I add, briefly, that, even if I had concluded there was unlawful detention in any of these cases justifying an award of damages, I would not in any event have awarded exemplary damages on the footing of unconstitutional, oppressive or arbitrary conduct, in so far as sought. While the Home Office has, to put it mildly, not covered itself in glory in this whole matter of the new policy, I think the failings were in essence one of failing, promptly and directly, to confront and address a perceived legal difficulty: whether through concerns at being bearers of unwelcome news to the Ministers or through an instinct for ducking an apparently intractable problem or through institutional inertia or some other reason, I cannot really say. I am not prepared, however, to conclude on the material before me that there was a conscious decision within the Home Office to operate tacitly an unpublished policy, known to be highly suspect, in the hope it would not be uncovered or, if it was uncovered, against a plan, if the courts intervened, to present that reversal as being due solely to the courts or the Human Rights Act. In my view what happened here, in any of these five cases, cannot fairly, I think, be described as sufficiently outrageous to justify an award of exemplary damages. In any event, I emphasise that individual consideration was given to the cases of each of the claimants.
(1) The Secretary of State's cross appeal will be allowed, and the first declaration (see para 2 above) will accordingly be set aside.
(2) The Appellants' appeals will be dismissed.