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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> TM (Kenya), R (On the Application Of) v Secretary of State for the Home Department [2019] EWCA Civ 784 (03 May 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/784.html Cite as: [2019] EWCA Civ 784, [2019] WLR(D) 260, [2019] 4 WLR 109 |
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ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE HOLMAN
CO/6378/2016
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HOLROYDE
and
LORD JUSTICE HADDON-CAVE
____________________
THE QUEEN ON THE APPLICATION OF TM (KENYA) (anonymity order made) |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
ROBIN TAM QC & JULIE ANDERSON (instructed by GOVERNMENT LEGAL DEPARTMENT) for the RESPONDENT
Hearing date: 26th March 2019
____________________
Crown Copyright ©
Lord Justice Holroyde:
The appellant's immigration history
The removal from association on 1st and 2nd August 2016
"[The appellant] will be relocated to Kingfisher under DC Rule 40 in preparation for her imminent removal directions. This is due to previous non-compliance with removal directions including her removing her clothing and covering herself in oil on the 5th May 2016.
Due to this previous incident taking place on the residential unit and causing a risk of disruption to the safety and security of the establishment it has been deemed appropriate to relocate [the appellant] in advance of her red letter window removal directions. This is with the aim for a more controlled removal to minimise risk of disruption to the good order and security of the centre."
At 1130 that morning, the RFA was authorised by Ms Fiona Quaynor, who was at the material time the Home Office Immigration Enforcement Manager at Yarl's Wood, and the appointed "contract monitor" at Yarl's Wood for the purposes of section 49 of the Immigration and Asylum Act 1999 (to which I refer below). Ms Quaynor entered the date and time, and her signature, in a section of the form DCF1 headed "Authority for initial 24 hours RFA (cases of urgency)".
The legal framework
"(4) The manager of a contracted-out removal centre may not –
(a) enquire into a disciplinary charge laid against a detained person;
(b) conduct the hearing of such a charge; or
(c) make, remit or mitigate an award in respect of such a charge.
(5) The manager of a contracted-out removal centre may not, except in cases of urgency, order –
(a) the removal of a detained person from association with other detained persons;
(b) the temporary confinement of a detained person in special accommodation; or
(c) the application to a detained person of any other special control or restraint other than handcuffs)."
"(4) The Secretary of State must appoint a contract monitor for every contracted-out removal centre.
(5) A person may be appointed as the contract monitor for more than one removal centre.
(6) The contract monitor is to have –
(a) such functions as may be conferred on him by removal centre rules;
(b) the status of a Crown servant.
(7) The contract monitor must –
(a) keep under review, and report to the Secretary of State on, the running of a removal centre for which he is appointed; and
(b) investigate, and report to the Secretary of State on, any allegations made against any person performing custodial functions at that centre.
(8) The contractor, and any sub-contractor of his, must do all that he reasonably can (whether by giving directions to the officers of the removal centre or otherwise) to facilitate the exercise by the contract monitor of his functions."
"40 Removal from association
1) Where it appears necessary in the interests of security or safety that a detained person should not associate with other detained persons, either generally or for particular purposes, the Secretary of State (in the case of a contracted–out detention centre) or the manager (in the case of a directly managed detention centre) may arrange for the detained person's removal from association accordingly.
2) In cases of urgency, the manager of a contracted-out detention centre may assume the responsibility of the Secretary of State under paragraph (1) but shall notify the Secretary of State as soon as possible after making the necessary arrangements.
3) A detained person shall not be removed under this rule for a period of more than 24 hours without the authority of the Secretary of State.
4) An authority under paragraph (3) shall be for a period not exceeding 14 days.
5) Notice of removal from association under this rule shall be given without delay to a member of the visiting committee, the medical practitioner and the manager of religious affairs.
6) Where a detained person has been removed from association he shall be given written reasons for such removal within 2 hours of that removal.
7) The manager may arrange at his discretion for such a detained person as aforesaid to resume association with other detained persons, and shall do so if in any case the medical practitioner so advises on medical grounds.
8) Particulars of every case of removal from association shall be recorded by the manager in a manner to be directed by the Secretary of State.
9) The manager, the medical practitioner and (at a contracted–out detention centre) an officer of the Secretary of State shall visit all detained persons who have been removed from association at least once each day for so long as they remain so removed."
"The use of removal from association must achieve the correct balance between the need to maintain safety and security and the need to show due regard for the dignity of the individual. Procedures must comply with the requirements of Rule 40."
Relevant caselaw
"Constitutionally, the decision of such an official is of course the decision of the minister."
"The immigration service is comprised of Home Office civil servants for whom the Secretary of State is responsible and I can for myself see no reason why he should not authorise members of that service to take decisions under the Carltona principle providing they do not conflict with or embarrass them in the discharge of their specific statutory duties under the Act and that the decisions are suitable to their grading and experience.
It has been recognised that it would not be right to authorise an inspector to take a decision to deport in any case upon which he had been engaged as an immigration officer for to do so would be too much like asking a prosecutor to be judge in the same cause. But in a case in which he has been in no way personally involved I am unable to see any good reason why the decision to deport in a section 3(5)(a) case should not be left to an immigration inspector. He will be a person of comparable grade to those who previously took the decision and equally experienced in immigration matters. There was a suggestion that because immigration officers were primarily concerned with control of entry and policing functions in respect of illegal immigrants there might be an ethos in the service that would lead too readily to a decision to deport. There was no evidence to support this suggestion and I can see no reason why senior members of the service should be tarred with this image, and in any event their decisions are reviewed in the deportation department before the order is signed by the Secretary of State."
"34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.
35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay [1985] AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. …"
"… is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made."
"(i) in considering whether a system is fair, one must look at the full run of cases that go through the system;
(ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases;
(iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself;
(iv) the threshold of showing unfairness is a high one;
(v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness; and
(vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts."
"(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly.
(2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period."
The segregation of the prisoners had in each case been ordered by the prison governor and had been reviewed after 72 hours by a segregation review board established pursuant to Prison Service Order 1700 (a non-statutory document issued by the Secretary of State) and chaired by a senior officer within the prison. It was common ground that the PSO purported to confer on a prison officer, the chair of the review board, the power to authorise the continued segregation of a prisoner after the initial period of 72 hours which had been ordered by the governor. The Secretary of State argued that by virtue of the Carltona principle, the decision of the governor or of the chair of the review board was the decision of the Secretary of State.
"An official in a government department is in a different constitutional position from the holder of a statutory office. The official is a servant of the Crown in a department of state established under the prerogative powers of the Crown, for which the political head of the department is constitutionally responsible. The holder of a statutory office, on the other hand, is an independent office-holder exercising powers vested in him personally by virtue of his office. He is himself constitutionally responsible for the manner in which he discharges his office. The Carltona principle cannot therefore apply to him when he is acting in that capacity.
51. It is possible that a departmental official may also be assigned specific statutory duties. In that situation, it was accepted in R v Secretary of State for the Home Department, ex parte Oladehinde … that the official remained able to exercise the powers of the Secretary of State in accordance with the Carltona principle.
52. It is also possible that the performance of statutory ministerial functions by officials, or by particular officials, may be inconsistent with the intention of Parliament as evinced by the relevant provisions. In such circumstances, the operation of the Carltona principle will be impliedly excluded or limited: Oladehinde at p303. Furthermore, the authorisation of officials to perform particular ministerial functions must in any event be consistent with common law requirements of rationality and fairness … ."
"The governor can order segregation at his own hand for a maximum of 72 hours, but any longer period requires the authorisation of the Secretary of State - in practice, senior officials from outside the prison - in order to protect the prisoner against the risk of segregation for an unduly protracted period."
Lord Reed then considered, and rejected, a submission by the Secretary of State that there was no such rationale. At [88-90] he said:
"88. … it can in my opinion be inferred that rule 45(2) is intended to provide a safeguard for the prisoner: a safeguard which can only be meaningful if the function created by rule 45(2) is performed by an official from outside the prison. It makes sense that the governor should be able to act at his own hand initially, since decisions to remove a prisoner from association with other prisoners may need to be taken urgently. It also makes sense that the governor should be able, under rule 45(3), to arrange for the prisoner's resumption of association with other prisoners at any time and, in particular, in response to any medical recommendation. Rule 45(2) however ensures that segregation does not continue for a prolonged period without the matter being considered not only by the governor but also by officials independent of the management of the prison. …
89. It follows that it is implicit in rule 45(2) that the decision of the Secretary of State cannot be taken on his behalf by the governor, or by some other officer of the prison in question. The Carltona principle cannot therefore apply to rule 45(2) so as to enable the governor or other prison officer to exercise the powers of the Secretary of State….
90. Any purported performance of the Secretary of State's function under rule 45(2) by a governor or other prison officer cannot therefore be treated as constituting performance by the Secretary of State. The Secretary of State's purported delegation of his function under rule 45(1) to the chairman of the SRB, in terms of the PSO, was therefore unlawful."
"These are important principles of public law and, in essence, require public bodies to formulate and apply policies in a clear, precise and transparent manner so that those subject to or affected by them know where they stand and can regulate their affairs accordingly. The principles are also important so that those affected by a decision that might be adverse to them can make representations to the decision maker before the decision is taken and/or know the reasons for the decision taken subsequently so that they can decide whether to challenge it in the courts."
"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 protection against arbitrary interference …"
The judicial review proceedings
"1) The failure to develop and publish a formal policy or formal guidelines in relation to removal from association under Rule 40 of the Detention Centre Rules 2001 is contrary to the common law requirements of clarity and transparency in relation to the exercise of broad statutory discretions;
2) The failure to provide the claimant, or indeed any detainee, with a reasonable opportunity to make representations in relation to the decision to continue with removal from association beyond a period of 24 hours is contrary to the common law requirements of procedural fairness;
3) The decisions to remove the claimant from association and (subsequently) to continue removal past the 24 hour mark were unlawful in that they were not properly authorised;
4) The decision to remove the claimant from association was irrational in all the circumstances;
5) The claimant's removal from association constituted a breach of her rights under article 8 of the European Convention on Human Rights."
The hearing before Holman J
"The essence of the requirement is that the official must be 'independent of the management of the prison' or, in this case, the detention centre."
"55 In my view, it is not open to me to hold that the contract monitor for a removal centre, who has the status conferred by, and who is exercising, the statutory duties imposed by section 149 (4) to (7) of the 1999 Act, is not of sufficient seniority, nor sufficiently independent to exercise the power of the Secretary of State, whether he or she is physically located within the removal centre or not.
56 I thus conclude that Ms Fiona Quaynor was a person who could lawfully give the authority of the Secretary of State on 1st August 2016 as she did."
"This is not a case where there was an unpublished and "secret" policy in conflict with the published one as in Lumba. This is not a case where there was a published policy document but it was unclear or ambiguous. The Rule itself is clear, and what is required is not a policy in elaboration of it, but some clear guidance as to its practical and procedural application. I do not consider that the absence of a policy document in August 2016 was unlawful and I dismiss the claim under ground 1."
The judge went on to accept that there was a need for guidance as to some of the issues which may require to be considered in deciding whether the test in Rule 40 is made out, but then noted that the recent issuing of Detention Services Order 02/2017 meant that it could no longer be said that there was an absence of guidance.
The grounds of appeal
i) in his approach to determining whether the initial period of segregation was properly authorised, in particular by misconstruing the applicable passages in Bourgass;
ii) in refusing permission on the appellant's rationality and proportionality challenges on the basis that there was insufficient evidence to determine them;
iii) in his approach to the common law requirements of clarity and transparency, in particular by drawing what was in the circumstances an unfounded distinction between "policy" and "guidance".
In terms of the original grounds on which judicial review was claimed (see [33] above), the first ground of appeal relates to ground 3; the second ground of appeal relates to grounds 4 and 5; and the third ground of appeal relates to ground 1.
The submissions on appeal
Discussion
Conclusion
Lord Justice Haddon-Cave:
Lord Justice Floyd: