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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 2397 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of MXL
|- and -
(Children by MXL their Litigation Friend)
|Secretary of State for the Home Department
Jeremy Johnson (instructed by The Treasury Solicitors) for the Defendant
Hearing date 25 June 2010
Crown Copyright ©
Mr Justice Blake:
"a serious case of wholesale organised crime involving special arrangements with teams of operatives in the store engaging in different roles, distraction techniques on the store staff and the actual handling of the items to be stolen. Methodology of the thefts was wholesale in the sense that whole lines of clothing were taken from shelves or hangers bundled into bin liners and into the boots of relevant cars in such numbers that on at least one occasion the boot of the car could not be closed."
i) The total period of detention in the light of all the circumstances of the case was excessive, and continued detention was unlawful as removal could not be effected within a reasonable period of time, particularly after the order for reconsideration had been made.
ii) The decisions to detain were procedurally flawed in that they were based on erroneous information and/or irrelevant considerations.
iii) The decision to detain and maintain detention was inconsistent with relevant policies adopted to regulate the exercise of the power to detain.
iv) The decision to detain was irrational and also in breach of Article 5 and Article 8 of the ECHR as it failed to take into account properly or at all the welfare of the children as a primary consideration, or accord the factors in favour of release the decisive weight they required.
The Power to Detain
"(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State
a) While the Secretary of State considers whether Section 32(5) applies and
b) Where the Secretary of State thinks that Section 32(5) applies, pending the making of the deportation order.
(2) Where the deportation order is made in accordance with Section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 unless in the circumstances the Secretary of State thinks it inappropriate."
"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)."
Sub-paragraph (1) refers to deportation following a recommendation by a criminal court, and sub–paragraph 2 to deportation following a notice of an immigration decision under s.105 Nationality Immigration and Asylum Act 2002.
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, s/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.
i) It is reasonable to detain someone who presents a risk of re-offending and a danger to the public for a longer period than someone who is not.
ii) Provided genuine efforts are made to effect removal, it may be reasonable to detain someone who represents a risk of absconding for a longer period than those where the risk is not a significant one.
iii) Nevertheless, there are cases where, whatever the gravity of conduct that justified the deportation in the first place, the prospects of removal are so remote that detention cannot be continued. The prospects of removal may become remote because necessary documentation cannot be provided, the receiving state refuses to accept the detainee, or human rights obligations prevent the detainee's removal to the only state to which he could be removed.
"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".
The importance of criminal offending and risk of absconding in justifying longer than normal detention was emphasised in R (A (Somalia)) v Secretary of State for the Home Department  EWCA Civ 804.
Challenge 1: The Length of the Detention
"It is now settled law that generally the date from which the lawfulness of detention falls to be considered is the date on which the appeal rights were exhausted".
Challenge 2 Flawed Consideration of the Discretion to Detain
The applicable law
"In short it appears to me that we are at liberty, unconstrained by binding authority, to interpret Schedule 2 to the 1971 Act without any pre-conceived notions. If we do so, there is nothing there to suggest that Parliament intended to confer immunity from suit on immigration offices who ask themselves the wrong questions, so that their decision to deprive an immigrant of liberty were a nullity and consequently unlawful. This is a conclusion at which one can arrive with a measure of satisfaction because it seems entirely wrong that someone has been wrongly detained by the executive because of a filing error or some other incompetence in their offices should not be entitled to compensation as a right. I see no reason incidentally, in relation to a claim against the first actor, to obtain first either a declaration that detention was unlawful or a quashing order; it is sufficient that the claimant was unlawfully detained on his authority and suffered damage as a result."
"88. We consider, first, that it is necessary to distinguish between the detention of (foreign national prisoners) FNP's under sub paragraph 1 of paragraph 2 of Schedule 3 to the 1971 Act and detention under sub paragraphs 2 or 3. Sub paragraph 1 is itself a legislative authority for the detention of an FNP who has been sentenced to imprisonment and who has been made the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances. Furthermore, SK is authority, binding on us, that a failure in breach of procedural rules to review his detention does not necessarily render the detention unlawful.
89. The position is different when the decision to detain is made under sub paragraph 2 or 3. In these cases, there is no lawful authority to detain unless a lawful decision is made by the Secretary of State. The mere existence of internal, unpublished policy or practice at variance with, and more disadvantageous to the FNP than the published policy will not render a decision to detain unlawful. It must be shown that the unpublished policy was applied to him. Even then, it must be shown that the application of the policy was material to the decision. If the decision to detain was inevitable, the application of the policy is immaterial, and the decision is not liable to be set aside as unlawful. Once again however, once a decision to detain has lawfully been made, the review of detention that is unlawful on Wednesbury principles will not necessarily lead to his continued detention being unlawful.
90. For completeness we would add that the test of materiality may not be precisely the same as in the context of an application for a quashing order in judicial review in that context, a court, faced with a judicial review claim may promptly follow in the original decision, would be likely to quash a decision, and require it to be retaken, even if the evidence showed only a risk that it might have been affected by the legalities. However, in the context of a common law claim in tort, which is concerned not with prospective risk, but with actual consequences, we think it would be entitled, if necessary, to look at the question of causation more broadly and ask whether the illegality was the effective cause of the detention (see EG Galoo Ltd v Bright Grahame Murray  1 WLR 1360, 1374; and the discussion of "Causation in the Law" in Clerk and Lindsell "The Law of Tort" 19th Ed, paras 2-69 to 71."
i) It is a defence to an allegation that detention is unlawful if it was open to a reasonable Secretary of State to make the decision to detain.
ii) A procedural failure (including a failure to take relevant circumstances into account) will not necessarily render the detention consequent on such a flawed decision unlawful if there is statutory authority and a presumption of detention. Such a failure may require the decision to be remade if challenged in judicial review proceedings.
iii) There must be a direct casual link between the factor making the exercise of discretion to detain unlawful and the detention, i.e. the breach of the policy, practice, promise or duty to consider an important factor must be the effective cause of the detention.
iv) An exercise of discretion to detain that is irrational or perverse in the sense that no reasonable Secretary of State could have made it on the information then known to him/her will not amount to an authority to detain that can be relied on in proceedings to challenge the legality of the detention.
v) There is no procedural exclusivity in judicial review proceedings and such a decision can be challenged by way of a claim for false imprisonment.
The relevant policy
"(1) The Secretary of State must make arrangements for ensuring that–
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are–
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer
(3) A person exercising any of those functions must, in exercising the
function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(6) In this section–
'children' means persons who are under the age of 18."
i) With reference to detention of those with family members it is stated:
"It may be necessary on occasion to detain the head of the household or another adult who is part of the care arrangements for the children, thus separating a family. Depending on the circumstances of the case, this may represent an interference with Article 8 rights…. It is .. arguable that a decision to detain which interferes with a person's right to family life in order to enforce immigration control and maintain an effective immigration policy pursues a legitimate aim and is in accordance with the law. It is only by considering the needs and circumstances of each family member that a determination can be made as to whether the decision is, or can be managed in a way so that it is, proportionate. … Even though the decisions may have been taken to avoid detaining the children their head of family, or other adult who is part of their care arrangements, in the interests of their welfare, the impact of the separation must be considered carefully. Any information concerning the children that is available or can reasonably be obtained must be considered. The conclusion reached will depend on the specific facts of each case and will therefore differ in each case. Regular reviews of detention should consider proportionality with regard to each individual, including any new information that is obtained." (220.127.116.11).
ii) The Manual contrasts more serious offences and less serious offences. The more serious offences are indicated in 18.104.22.168 as violent, sexual, drug related and other serious offences with the consequence:
"A conviction for one or more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result of the high risk of public harm carries particularly substantial weight when assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion of such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Case workers must balance against the increased risk including the particular risk to the public from re-offending and the risk of absconding in the individual case the type of factors normally considered in non FNP (Foreign National Prisoner) detention cases."
By contrast :
"while these factors remain important assessing whether detention is reasonably necessary where a person has been convicted of a less serious offence, they are given less emphasis than where the offence is more serious, when balanced against other relevant factors again, the types of other relevant factors include …whether their release is vital for the welfare of the child or child dependents". (55.3.A)
iii) The factors influencing a decision to detain are set out at 55.3.1 they include the following points:
likelihood of person being removed and when,
evidence of previous absconding
evidence of previous failure to comply with conditions of temporary release for bail;
determined previous attempt to breach immigration laws;
previous history of complying with immigration control by making appropriate application;
ties with United Kingdom including close relatives, children or vulnerable adults;
settled address and employment.
iv) Two particular factors relevant to the present application should be quoted:
"What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch? Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?" .
Decisions to maintain detention wherever the FNP has provided evidence of a family life and detention results in splitting the family should be countersigned at Grade 5/Director level (22.214.171.124).
v) More detailed information as to risk of harm to the public is given at 126.96.36.199:
"It will be assessed by NOMS unless there is no offender assessment system (OASYS) or pre-sentence report available. There will be no licence and OASYS report where the sentence is less than 12 months. NOMS will only be able to carry out a meaningful risk assessment in these cases where a pre-sentence report exists (details of which can be obtained from the prison) or where the subject has the previous conviction resulting in a community order. The case owner should telephone the offender manager for an update in cases where the risk assessment has been obtained less than 6 months before…where NOMS can provide an assessment, it can be obtained directly from the offender manager in the probation service in the same way that information is obtained in bail cases and should be received within 3 days. The bail process instruction includes details on how to contact the offender manager and identify the probation areas single point of contact. The form below should be completed and sent by fax to the offender manager with a copy in all cases to the SPOC, a record should be kept of the date formally sent to the date returned."
vi) The guidance continues that where NOMS are unable to produce a risk assessment the offender manager advises that this is the case; case owners will need to make a judgment on this risk of harm based on the information available to them. Those with the long record of persistent offending are likely to be rated at high or medium risk
vii) 188.8.131.52 gives important guidance as to the outcome of risk assessment for the purposes of detention or bail:
"Those assessed as low or medium risk should generally be considered for management by rigorous contact management under the instructions in 55.20.5. Any particular individual factors relating to the profile of the offence for the individual concerned must also be taken into consideration and may indicate that maintaining management by rigorous conduct management may not be appropriate in an individual case."
The instructions in 55.20.5 refer to release upon conditions on reporting twice weekly and the subject to electronic monitoring.
The Defendant's Decisions: April to July
i) 6 April 2009: A letter from UKBA to the claimant in detention informed her that it had been decided to detain her because there was a risk of further offending and she was likely to abscond if released. A number of her offences, her past use of aliases, her breach of a community rehabilitation order and conditional discharge were relied upon as factors. Whilst acknowledging that she had a husband and two children it was stated:
"There is no evidence that your relationship with them are (sic) subsisting. It is therefore not clear that your husband would be able to exert control over you to ensure that you comply with any release conditions."
The decision letter explains also that detention will be a proportionate interference with the right to respect family and private life because even if the relationships are subsisting, detention supported the legitimate aim of prevention of crime and disorder. This decision appears to have been made on the basis of a minute prepared on the same date in which it is also stated:
"It is believed that the risk of re-offending is high and that by the same measure the risk of harm to the public is high".
ii) 14 April a minute concluded:
"She has a high risk of re-offending and a medium risk of harm. She has a husband and two children but the status of the relationships are not known. I consider that the presumption in favour of release is outweighed in this case".
iii) On 21 April the claimant was interviewed in detention and mentioned that her children had been looked after by Jacqueline Ellis in Chingford whilst she (the claimant) was in detention and although her marriage was subsisting her husband had not visited her in prison. A further decision letter was sent to the claimant on 22 April no longer disputing that the relationship with her two children was not subsisting but otherwise maintaining detention for essentially the same reasons as had previously been communicated.
iv) On 6 May 2009 a reference was made to the Office of the Children's Champion within the UKBA for advice on continued detention of the claimant and whether the claimant should be deported to Jamaica. Amongst the information that had been gathered for that reference was the fact that risk had been assessed by the Criminal Case Directorate case owner as a copy of the claimant's licence conditions had not been provided to UKBA by the prison after this was requested at least twice. Risk of harm was assessed as medium because of habitual re-offending. Further UKBA received information from the London Borough of Waltham Forest Social Services Department expressing concern that the claimant's two children "have no one caring for them who has parental responsibility".
v) On 8 May 2009 an email sent at 09.53 by the Children's Champion asked various questions as to who had been caring for the children before the claimant went to prison, the prospects of the father making a claim for their care and the time needed to determine the In-Country Appeal. In this first email it was stated:
"My concern is that we need to maintain the relationship between mother and children so that we are able to remove them together. If they are separated this will make it much more difficult for the children."
vi) On 8 May 2009 at 13.57 UKBA responded that the social services were not aware of the father playing any role in the children's lives and that the claimant had stated in her representations against deportation (unfortunately not before the court):
"I miss my children so much and being away from my family had an impact on our lives, my five year old is withdrawn from the family and I am on anti depressants to cope with not being there. She keeps asking if I will be there for her birthday because I missed last year".
The note continues:
"We can only therefore assume that she had care of her children prior to her imprisonment. The claimant claims whilst in prison she has been in contact with her children and sees them at least once every two weeks and also on children's day held at HMP Bromsfield".
It indicates that there was a bail hearing due on 12 May where she was hoping to be released to an address to reside with the husband though three different addresses have been given for the husband previously and the husband was not a bail surety. The note concluded:
"In view of her impending AIT bail I would be grateful if you could also confirm whether you recommend her release to reunite her with her children in line with her request".
vii) On 8 May 2009 at 14:36 there was a prompt response to this letter from the Children's Champion stating:
"My concern is the welfare of the children. My preference is to release her so that she can maintain the care and the relationship with her children. We can then plan to remove them together".
viii) It appears from a file note in the claimant's case papers that bail was refused on 12 May. This fact is not referred to in the chronologies provided by either counsel and it does not appear that either the bail summary or the Immigration Judge's reasons for this decision have been provided to the court. It is equally unclear whether the recommendation of the Children's Champion had been brought to the attention of the Immigration Judge (IJ) at this stage.
ix) On 13 May 2009 a file note noted that this is a difficult case as the claimant's offending pattern indicated that she would:
"Almost certainly re-offend in respect of property offences there is less risk of physical harm although she does have odd conviction for assault".
The note continues:
"She has two young children and social services have some current concern re them and the OCC recommends release for the sake of the children. She would not seem to be the most ideal mother given her offending behaviour and I am not sure we have the full picture of the family set up and the real benefits of release in respect of the children. I do not recommend release now but I would like us to meet with Social Services and understand the issues and risks to the children. If the other viable care option for the children must involve the mother I feel this may provide a basis for release. Are you content for me to arrange that meeting and organise release only if judge a release is imperative to the welfare of the children?"
x) This note was provided to the Chief Executive of UKBA personally who decided on 15 May that release should not take place.
xi) On 28 May 2009 a deportation order was signed and served on the claimant on the 4 June 2009. She appealed against this on the 8th June.
xii) On 11 June 2009 the claimant's detention was reviewed. It was noted that in the light of the number of convictions the risk of re-offending was high but that the risk of harm to the public was considered to be low. Previous breaches of court orders indicated a risk of absconding. The claimant had little incentive to remain in contact with authorities if released on restrictions. It was noted that the case had been assessed for release with the current criteria outlined in Chapter 55 of the Enforcement Instructions and Guidance. However, release was not deemed appropriate for the above reasons.
xiii) On 7 July 2009 Immigration Judge McCarthy refused bail after a hearing at which he appears to have received evidence. His reasons for doing so were in the following terms:-
"There were a number of material discrepancies between the applicant's evidence and the evidence given by her husband and by Mrs Williams. For example the applicant said she had always lived with her husband where as he said he moved out of the family home from about two years after their marriage, only returning to the family home after the applicant was incarcerated because of her criminal activities. The applicant told me that Mrs Williams had known about some of her offences where as Mrs Williams said she had not known about any of them. These and the other discrepancies mean that I am unable to trust the applicant's evidence and therefore cannot be satisfied that she would be influenced by her husband or her surety to an extent that she would comply with any conditions that I might impose. As I cannot trust the appellant I am not satisfied that she will comply with any condition I might impose. In reaching my decision to refuse to grant bail, I have taken into account the fact that the applicant has a pending appeal. However, given her criminal history, which I am not satisfied, this is sufficient to ameliorate a risk of absconding. The applicant is aware that she faces deportation and does not wish to leave the United Kingdom. This indicates to me that there is a high likelihood of the applicant to abscond."
Procedural flaws April to July
Consideration of the welfare of the children
Conclusions on the defendant's decision making April to July
Challenge 3: Continued detention
The Decision to Maintain Detention from July to December 2009
"We have considered her contention that as a result of her imprisonment she is now a reformed character. We give due weight to the fact that she has managed to gain some educational achievements in prison. We do not doubt that she regrets the situation that she now finds herself in and the consequences to her. We are far from persuaded that she has mended her ways and will not re-offend in the future. On the contrary it is our belief she will continue to re-offend".
The evidential basis for such an assessment is not apparent from the determination. The panel did not have a NOMS or OASYS assessment before them as to assessment of the risk of re-offending at the time of completion of her criminal sentence. The determination continues:
"46. We accept that there exists family life between the appellant and her two children. The issue before us is whether the removal of the appellant would constitute a proportionate interference with the appellant's family life with her children. We must balance her right to a family life with her children against the respondent's right to maintain immigration control and prevent crime.
47. The children are now aged six and two. They are both British Citizens. There is some evidence that the imprisonment of the appellant has caused psychological problems to K in that she very much misses her mother. That is understandable. She is now settled into school. However, on the evidence before us (or rather the lack of it) she does not suffer from any serious medical or psychological conditions. There is no medical evidence relating to Z and therefore we assume that she is in good health.
48. On the entirety of the evidence before us we find that the children are not likely to encounter serious difficulties with regard to their ages in the adjusting to life in Jamaica we find that it is reasonable for them to accompany their mother to Jamaica. In this regard the father says he will commence legal proceedings to prevent their removal. He is of course free to do so but we must consider the position as it is today and we are not prepared to speculate on the likely outcome of such an application to the Family Court.
49. We must consider the impact on Mr Sanderson of the deportation of the appellant to Jamaica and the possibility that she made decide to take the children with her rather than to leave them with him or with Miss Ellis. To utilise the expression of their Lordships in Beoku-Betts he has to be considered as a potential victim himself as we have found the appellant and Mr Sanderson not to be truthful witnesses and we do not accept that their state of mutual intention is to effect a reconciliation and re-commence that life. In our view they have no such intention. The reason for stating that they wish to get back together as a family is a deliberate attempt to mislead this tribunal in order to enhance the prospect of success of appeal. Accordingly we find that Mr Sanderson had no family life with the appellant and the children from about 2005 onwards and this notwithstanding that Z must have been conceived after they separated. …we therefore find the removal of the appellant with the consequence that the children accompany her is a proportionate response by the respondents.
55. It seems to us there are three options in respect of the children. The first is that they accompany their mother to Jamaica, in which case Mr Sanderson can accompany them as well. We find that it is not unreasonable to expect him to do so. He is of Jamaican origin albeit now a British Citizen and has not lived in Jamaica since he was 13. We understand that he is working in the United Kingdom but we are provided with no further information no reason has been given to us as to why he could not obtain employment in Jamaica. The second option is that the children remain with him in which case the appellant can maintain contact by way of letters and telephone and that they can visit her in Jamaica. The third option is that the children remain in the foster care of Mrs Ellis and the appellant can maintain contact the same way and Mr Sanderson can have regular access to them.
56. ….We consider the weight of the evidence and find that the decision to deport the appellant is in all the circumstance a proportionate response."
"The case has been assessed under current guidance with the presumption of release but is deemed unsuitable through rigorous contact management despite close ties with the United Kingdom in the form of a husband and two children who are all British citizens. Approval has been given to split the family by director level, and consideration of the children's welfare has been undertaken. The risk of absconding is high, the risk of re-offending is also high and the risk of harm to the public is assessed as being low. "
The author of the memo was aware that reconsideration had been ordered by the High Court. Despite the panel's finding as to the breakdown of the relationship between the claimant and her husband, reliance was still placed upon the fact that there was a significant risk of absconding because "your husband was unable to prevent you from committing the offences for which you were convicted". The same point was made in a letter of 20 November 2009 to the claimant were it was said:
"There is also no evidence that your husband and children would be able to exert sufficient influence over you to ensure that you comply with any conditions imposed as part of your release".
i. The claimant's offender manager had assessed her as posing a medium risk of serious harm to the community by further re-offending.
ii. She was assessed as having a high likelihood of re-offending. Her offender manager is reported as stating that:
" (she)has not complied with her previous orders and has committed offences whilst under probation".
iii. The amount of recognisance offered was not considered sufficient to act as an incentive for proposed surety.
iv. The surety had not provided evidence that funds that are available to cover the recognisance. Despite the proposed surety's friendship with the claimant she was not proposing to reside with her. Therefore it was unclear how the surety would be able to exercise any control over her to ensure that she would comply with any conditions of release and make contact with UKBA.
v. Her reconsideration hearing listed for 19 January 2010 was not considered to be sufficient incentive to remain in touch with officials.
vi. The reasons for opposing bail were that she would fail to surrender to custody. However if bail was granted four conditions were sought to secure attendance, to sleep each night at the bail address, to report daily or weekly to an UKBA reporting centre, that she should be fitted with an electronic monitoring tag as instructed by UKBA and she should notify any application to change her address or bail.
i) The claimant was found at the hearing on 7 July 2009 and also the deportation hearing to have lied and to be an unreliable witness.
ii) The claimant was in the same position as 7 July 2009 except now she had the further adverse findings against her.
iii) She had a very poor criminal history.
iv) The surety had previously failed to contact the claimant. There is nothing to show she would have any more success in the future.
v) The claimant still faced deportation and there is a high likelihood of her seeking to abscond
i) The advice of the Children's Champion appears to have been forgotten.
ii) The representations from Waltham Forest, Ms Ellis, and the Children's Society, as well as the claimant personally that she should be with the children were not identified as strong pointers to where the interests of the children lie.
iii) The proportionality of the detention having regard to the welfare of the children had not been kept under review and updated in the light of new information as required by the policy (184.108.40.206).
i) The order for the reconsideration was likely to lead to delay before the appeal could be determined and (if unsuccessful) removal could be effected. The strength of the case for release on bail grows with each passing month.
ii) The first option in the assessment of the AIT in the deportation appeal was that this was a case where the children's best interests were to be with their mother and to return with her to Jamaica. This was also the advice tendered by Waltham Forest Social Services in October. In those circumstances the case for release of the claimant to be with the children pending resolution of the question whether she should be deported was compelling. This was precisely the recommendation of the Children's Champion which should have been revisited in the light of the AIT's factual findings as to family situation and the interests of the children. There is no indication that it was. If the judicial assessment of the interests of the children required them to be reunited with mother, then to maintain the separation seems inexplicable in the absence of compelling contra-indicative factors
(iii) The evidence of the AIT, the London Borough of Waltham Forest, Ms Ellis, the Children's Society, and the representations of the claimant itself point to the strength of the relationship between the two children and the mother. In the light of the previous findings of fact there seems no reason to reject this evidence. It amounted to a powerful factor as to why she would honour the conditions of her release in order not to lose contact with her children. That powerful factor against the possibility of absconding does not seem to have been considered at all.
(iv) The reference to the medium risk of harm to the public presented to the IJ contradicted by the low risk assessment consistently made by UKBA over the previous five months was positively misleading. The proper assessment was low risk and the failure to relate this assessment to the UKBA policy Manual is particularly unfortunate.
(v) The risk of the claimant's absconding had been based entirely on her criminal conduct before she was remanded in custody in April 2008. There appears to have been no assessment of what the effect of that remand and the two year sentence had been on her, or the likely impact of the licence conditions to which she would be subject if released.
(vi) The claimant is an independent adult of full capacity. She must take responsibility for her own actions. The references to a relative failing to prevent offending seem to be a regular feature of UKBA bail summaries in immigration cases. I have serious doubts whether they should be. A surety's function is prospective to ensure that the person bailed attends when required. In any event, to apply this reasoning to minor children or an estranged partner is absurd and a case of some pro- forma factor influencing a decision where it has no relevance.
Challenge 4: Breach of Human Rights
"79. The Court further reiterates that where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law but also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely, to protect the individual from arbitrariness.
80. The Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of "lawfulness" set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail."
67. It is well established in the Court's case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be "lawful". Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above § 37; Amuur, cited above, § 50; Chahal, cited above, § 118, and Witold Litwa, cited above, § 78). It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of "arbitrariness" in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention.
68. While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute "arbitrariness" for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. It is moreover clear from the case-law that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved (see further below).
70. The notion of arbitrariness in the contexts of sub-paragraphs (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see Witold Litwa, cited above, § 78; Hilda Hafsteinsdóttir v. Iceland, no. 40905/98, BAILII:  ECHR 251, § 51, 8 June 2004; Enhorn v. Sweden, cited above, § 44). The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty (see Vasileva v. Denmark, no. 52792/99, BAILII:  ECHR 457, § 37, 25 September 2003). The duration of the detention is a relevant factor in striking such a balance (ibid., and see also McVeigh and Others v. the United Kingdom, applications nos. 8022/77, 8025/77, 8027/77, Commission decision of 18 March 1981, DR 25, pp. 37-38 and 42).
"The phrase "in accordance with the law" implies that the legal basis must be "accessible" and "foreseeable". A rule's effects are "foreseeable" if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct. In addition, there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention. It would be contrary to the rule of law for the legal discretion granted to the executive in areas affecting fundamental rights to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference". (Emphasis supplied)
"Article 3 (1): the best interests of the child as a primary consideration in all actions concerning children.
The article refers to actions undertaken by "public or private social welfare institutions, courts of law, administrative authorities or legislative bodies". The principle requires active measures throughout Government, parliament and the judiciary. Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children's rights and interests are or will be affected by their decisions and actions - by, for example, a proposed or existing law or policy or administrative action or court decision, including those which are not directly concerned with children, but indirectly affect children."
"25. There appears to be little if any authority on this question. It is common ground that a failure by the Home Secretary to apply his own policy will render his decision "not in accordance with the law" within ground (e) of the permissible grounds of appeal set out in s.84(1) of the Nationality, Immigration and Asylum Act 2002. But it is the Home Secretary's contention that if a Home Office decision fails this test before the AIT, the immigration judge has no power to apply the policy and is limited to remitting the case so that the Home Office can do so. This is what the AIT in AG (Kosovo) v Home Secretary  UKAIT 00082, §51, considered to be the situation. For the rest, Parishil Patel for the Home Secretary submits that the proper course of reasoning is to ask first whether the case comes within the Rules and if – like this case – it does not, to proceed to consider it under the Convention. As to whether, in doing this, any weight can be given to the Home Secretary's own policy, he was unwilling to commit himself.
26. The starting point, as it seems to me, is that no principle of law makes inadmissible on an appeal to the AIT a policy used by the Home Secretary for the very purpose which the AIT is now addressing in the light of the Home Office's submissions. Indeed, I find it troubling that the Home Office presenting officer does not appear herself to have drawn the immigration judge's attention to the policy or to have sought to put forward a case consistent with it. Doing so might well have involved accepting that the Home Office did not regard a simple breach of immigration control, once there was a qualifying marriage, as by itself a sufficient reason for removal or deportation. It would also have involved pointing out that the Home Office did, however, regard insufficient proof of unreasonableness in relation to the settled spouse as justifying removal.
29. It follows in my view that the determination is further flawed by its failure to bring into the assessment of the proportionality of removing the appellant the fact that the executive as a matter of policy does not regard an overstayer who is now in a qualifying marriage as ordinarily liable to removal if the settled spouse cannot reasonably be expected to go too. The immigration judge appears to have directed himself that policy is for the executive (which is what I take him to have meant by "the elected powers in the state") and not for him. For the reasons given above, he was right in the first half of this proposition but wrong in the second."
. In fairness to the judge, we acknowledge that his reliance on the Sunday Times case gained apparent support from the judgment of this court in R (Nadarajah) v Home Secretary  EWCA Civ 1768, paras 64-67 to which he also referred. Although we respectfully agree with the actual decision, and indeed most of the reasoning, of the court in that case, we have some difficulty, with respect, in understanding one aspect of the reasoning. The two cases there under consideration concerned the Home Secretary's policy, as understood from published documents, not to treat removal of an unsuccessful asylum-seeker as "imminent" (thus justifying detention), where proceedings to challenge removal had been initiated. Unpublished policy guidance indicated that in deciding whether removal was imminent, no regard would be paid to statements, even by legal advisers, that proceedings were about to be initiated. The unpublished guidance was at odds with the published policy. As a result, solicitors acting for the asylum-seekers were unaware that a formal letter indicating that proceedings were about to begin would not prevent their client's detention: the solicitors believed, on the basis of the published policy, that their letter before claim would suffice to avoid his detention. The court held that a decision to detain, made in reliance on the unpublished guidance, was unlawful. In a passage headed "Is the policy accessible?" Lord Phillips MR (in a judgment with which his colleagues agreed) quoted the same passage from the Sunday Times case, as indicating that "the law" must be "accessible" (para 64-5). He then moved, without further discussion of the principle, but after considering the evidence, to the conclusion that the Secretary of State's "policy" was not accessible (paragraph 67). The explanation for this apparent non-sequitur may possibly be found in an earlier passage, in which he stated, after reference to the rule against arbitrary detention in Article 5 of the Convention, and by way of introduction to the four questions said to be raised by the case:
"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.
78. Given the lack of discussion of this point, we do not with respect regard ourselves as bound by this judgment to accept that, whether for the purposes of the Sunday Times principles or otherwise, policy is to be equated with law. We have no difficulty in accepting the decision so far as it depended on the inconsistency of the published and unpublished policies. In that respect it is readily explicable under principles of legitimate expectation, as already discussed. Thus in N's case (the other case was said to be "even stronger": paragraph 70), the Master of the Rolls accepted that the claimant had arguable claims for judicial review, that there was no reason to doubt the genuineness of his solicitor's intentions, and that had she been aware of the unpublished policy she would have instituted proceedings before the detention (paras 68-9). He observed:
"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)"
79. That, to our mind, is the language of legitimate expectation, rather than of a specific legal requirement. Thus, as in the present case, the vice was not the lack of publication, but the operation of the unpublished policy in a manner inconsistent with the published policy."
i) There need to be criteria for the exercise of a broad power to detain foreign nationals afforded under the primary legislation. This is particularly the case where substantial periods of detention may result from assessment of claims or enforcing removals. Criteria for immigration detention and review of it should be published and accessible if the exercise of the power is not to be characterised as arbitrary.
ii) The duration of detention is a very important factor in control of arbitrariness but not the only one, certainly where detention impacts on the interests of the child.
iii) A failure to apply published criteria to an individual case means that the individual has not been detained in accordance with the procedural rules promulgated by the national authority to regulate detention.
iv) National law, in any event, includes the doctrine of legitimate expectation whereby a failure to have regard to applicable policy will render the decision unlawful.
v) The notion of law in Article 5 and Article 8 extends beyond domestic statutory requirement to all indicia applied nationally and internationally that are required to prevent detention becoming disconnected from its purpose, disproportionate, and arbitrary.
vi) In both domestic and ECHR law the principles of good government and the prevention of arbitrariness walk hand in hand: 'say what you mean and mean what you say'.