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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Onos v The Secretary of State for the Home Department  EWHC 59 (Admin) (26 January 2016)
Cite as:  EWHC 59 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ABIMBOLA MERCY ONOS
(plus 3 dependants)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr N. Westaway (instructed by Government Legal Department) for the Defendant
Hearing dates: 25 November 2015
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE:
i) to remove the Claimant and her three children to Nigeria under section 10 of the Immigration and Asylum Act 1999 ('the 1999 Act') and
ii) to detain the Claimant and her three children pending their removal.
i) the Claimant had an in-country right of appeal which was a barrier to removal,
ii) the Defendant did not pay sufficient regard to the welfare of the Claimant's children, contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 ('the 2009 Act'), and
iii) the Claimant is entitled to indefinite leave to remain ('ILR') because she has lived in the United Kingdom for more than 20 years.
i) the Claimant had an in-country right of appeal at the time she was detained, and
ii) the decision involved a breach of the Defendant's policy in relation to the detention of families.
The legal framework
Section 55 of the 2009 Act
i) The best interests of the child are an integral part of the assessment of proportionality under article 8.
ii) The best interests of the child must be a primary consideration in that assessment, but not always the only primary consideration; and they are not a paramount consideration.
iii) The best interests of a child can be outweighed by the cumulative effect of other considerations, but no other consideration can be treated as inherently more significant.
iv) Different judges may approach the best interests of a child in different ways. It is important to ask the right questions in an orderly way in order to avoid the risk of undervaluing the best interests of a child when other important interests are in play.
v) It is important to have a clear idea of the child's circumstances and of what is in that child's best interests before asking whether those interests are outweighed by other considerations.
vi) There is no substitute for a careful examination of all the relevant factors when the interests of a child are involved in an article 8 assessment.
vii) A child must not be blamed for matters, such as the conduct of a parent, for which he or she is not responsible.
The relevant policies
'This should be sought
• Where timing and availability of flights and requirements for removal notice periods mean the family needs to be accommodated for longer than 72 hours. This should also be detailed in the return plan for the IFRP. Ministerial authority must be in place before the family enters Cedars.
• Where a first attempt at return fails or it is believed the scheduled return will fail and a further set of removal directions can be secured without the family exceeding a total of 7 days in Cedars. This option cannot be utilised unless it was included as a contingency in the return plan. Advice received from the IFRP must be included in the request for ministerial authorisation, which must be obtained within 18 hours of a family's failed return or within 72 hours of the family originally entering Cedars, whichever time period is greatest. Detention operations duty director authority must be obtained for a family to re-enter Cedars under these circumstances, pending ministerial authority.' (all bold type as in the original).
The relevance of her published policies to the exercise by the Secretary of State of powers of detention
The Hardial Singh principles
i) The Secretary of State must intend to deport the person and can only use the power for that purpose.
ii) The deportee may only be detained for a period which is reasonable in all the circumstances.
iii) If before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to deport within a reasonable period, he should no longer detain the person.
iv) The Secretary of State must act with reasonable diligence to deport the person.
A. Was the decision to remove unlawful?
(1) Did the Claimant have an in-country right of appeal?
(2) Did the Defendant breach section 55 of the 2009 Act?
(3) Was the Claimant entitled to indefinite leave to remain?
B. Was the Claimant wrongfully imprisoned?
i) What does the Defendant's relevant policy mean?
ii) Did the Defendant breach her policy?
iii) If so, did she have good reason for doing so?
iv) Was the Claimant's detention unlawful?
v) If so, is this the type of breach that must sound in damages, even if the Claimant's detention was justified and the Defendant would have detained her in any event?
(1) What does section 5 of Chapter 45 mean?
i) Removal directions must have been set before a family is detained, so removal must be really imminent.
ii) The period of detention 'will not normally exceed 72 hours'.
iii) 'There is no provision to hold a family for longer than seven days in any circumstances'.
In the light of the reasoning of the Supreme Court in Kambadzi, I consider that it is clear that the Secretary of State has very significantly fettered what would otherwise be a wide power to detain families with children. There is no doubt, for example, that if the Secretary of State detained such a family for longer than seven days, she would act unlawfully, unless she had good reason for departing from the policy on the facts of a particular case.
i) Does the phrase 'removal directions' in paragraph 5.1 mean 'removal directions the service of which complies with Chapter 60'?
ii) Does 'However this can be extended up to a maximum of seven days with ministerial authorisation, sought by the RC family returns team' (paragraph 5.1) mean that the Minister has a general power to extend the minimum period of 72 hours, or are the two bullet points under the heading 'Ministerial authorisation' in paragraph 5.2 an exhaustive statement of the circumstances in which a Minister can authorise detention for longer than 72 hours?
(2) Did the Defendant breach her policy?
(3) Did the Defendant have a good reason for breaching, or for departing from, her policy?
(4) Was the Claimant's detention unlawful?
(5) Is the Claimant entitled to more than nominal damages?
i) What is the correct approach to this question at common law?
ii) If that approach is applied, is the Claimant entitled to more than nominal damages?
iii) Is the Claimant entitled to aggravated damages?
iv) Is the Claimant entitled to damages for breach of article 5 of the ECHR?
(i) The correct approach at common law
(ii) If the correct approach is applied, is the Claimant entitled to more than nominal damages?
(iii) Is the Claimant entitled to aggravated damages?
(iv) Is the Claimant entitled to damages for breach of article 5 of the ECHR?