I & Ors, R (on the application of) v Secretary of State for the Home Department

The appellant, Mr I. and his now estranged wife, Mrs I, arrived in the United Kingdom on 17 April 2004 and were granted leave to enter as visitors for 6 months. They did not leave and became overstayers. On 15 January 2007 Mrs I claimed asylum, with Mr I and their children as her dependants. At that time they had three children, the eldest born in February 2003, the next in August 2004 and the youngest in April 2006. Since then another child has been born, in August 2007. On 14 February 2007 the claim was refused by the Secretary of State, who had previously served one-stop warning notices on all of them under section 120 of the Nationality, Immigration and Asylum Act 2002. Time passed; Mrs I made further representations which were rejected.

On 24 September 2008 the Secretary of State detained Mrs I, and the next day Mr I and the rest of the family, pending their removal. Two days later, on 26 September 2008, Mr I lodged a claim for asylum and on human rights grounds. It was refused by the Secretary of State on Wednesday 1 October 2008. The Secretary of State certified both claims under section 96(2) of the 2002 Act. Three days earlier, on 28 September 2008, removal directions had been given for Mr I to be removed on a flight leaving Heathrow at 12. 50 on Friday 3 October 2008. (Separate removal directions given for Mrs I's removal apparently provided for her to be removed on 4 October 2008. )

On the Thursday, 2 October 2008, Mr I issued and served an application for judicial review on behalf of himself and the four children. Seemingly prepared at a time when Mr I and his advisers were unaware that a decision in relation to his claims had in fact been taken the previous day, the application sought to challenge what was said to be the Secretary of State's refusal to cancel the removal directions and his failure to process the asylum claim.

Although the Secretary of State appears initially to have taken the view that the claim for judicial review was "weak" - the word used, as we will see, in a minute written by an official on or about 3 October 2008 - and although by the time he came to file his acknowledgment of service on 16 October 2008 he was asserting that the claim was "totally without merit", the Secretary of State took no immediate steps in relation to the proceedings. Indeed, on the very same day as they were issued, 2 October 2008, the Secretary of State decided to defer the removal. The letter sent to Mr I's solicitors containing that no doubt welcome information also stated, however, that "a decision has been taken to maintain detention of the family. "

The remainder of the chronology can be summarised briefly. On Friday 10 October 2008 Mr I was released from detention with the three older children. Mrs I and the youngest child were released on 13 October 2008, the following Monday. On 14 October 2008 Mr I filed supplementary grounds for judicial review, challenging on various grounds the decision of the Secretary of State on 1 October 2008 refusing his asylum and human rights claims, and also challenging the legality of his and the children's detention. On 16 October 2008 the Secretary of State filed his acknowledgement of service and summary grounds for opposing the claim, asking that permission be refused, asserting that the application was totally without merit and seeking an order that renewal of the application not result in the suspension or stay of removal directions. On 31 October 2008 a deputy judge granted permission. The substantive application came on for hearing before Plender J on 9 February 2009. He gave judgment the same day: R (I) v Secretary of State for the Home Department [2009] EWHC 333 (Admin). Plender J dismissed the claim in its entirety and refused Mr I permission to appeal.

In relation to the claim that the detention was unlawful Plender J said this:

On 2 March 2009 Mr I renewed his application to the Court of Appeal, though only, it is to be noted, in relation to the claim for unlawful detention. In the meantime, the Treasury Solicitor, under cover of a letter dated 24 February 2009, had sent Mr I's solicitors copies of the internal papers detailing the detention reviews carried out by the Secretary of State's officials.

The appellant's notice identified five grounds of appeal: (1) that there was factual misdirection, the judge having misunderstood how long the detention had persisted; (2) that there was legal misdirection, the judge having been wrong to say that there was no obligation to give written reasons for the detention if the reasons were obvious (the argument being that an obligation to give written reasons exists by virtue of both rule 9 of the Detention Centre Rules 2001, SI 2001/238, and the Secretary of State's published policy in Chapter 55 of the Enforcement Instructions and Guidance); (3) that there was factual misdirection or irrationality in the judge concluding that a decision to maintain detention on 2 October 2008 could have been informed by the fact that Mrs I, from whom, as the Secretary of State knew. Mr I was separated, had signed a disclaimer on 6 October 2008; (4) that there was factual misdirection or irrationality, given that the disclaimer was irrelevant to Mr Ps position and could not have impacted in any way upon the likely timescale for his removal; and (5) that the fresh evidence disclosed by the Secretary of State since the hearing suggested that the

Permission was granted on 8 May 2009 by Dyson LJ (as he then was). Although he was not impressed by grounds (1), (2) and (3), Dyson LJ gave permission on all five grounds. But he made it clear that ground (4) was the main reason why he gave permission, observing that it was "difficult" to see how the judge could necessarily infer that the Secretary of State took the view, on the basis of Mrs I's form of consent to removal, that Mr I would (or even might) be removed within a short space of time. Ground (5), as he pointed out, was linked to ground (4).

The appeal came on for hearing on 19 May 2010. Before us, as before Plender J, Mr I and the four children were represented by Mr Graham Denholm and the Secretary of State by Mr Steven Kovats QC. At the end of the hearing we reserved our judgments, which we now hand down.

Mr Denholm does not challenge, nor in my opinion could he sensibly challenge, the legality of the detention until 2 October 2008. As will appear in due course, it was manifestly lawful. But, he says, once the proceedings for judicial review had been issued on 2 October 2008 and the removal directions had been cancelled the same day, the detention of Mr I and his children was, as it is put in the grounds of appeal, "unlawful from that point on. "

Mr Kovats for his part adopted a pragmatically sensible approach in the circumstances. He did not seek to uphold Plender J's reasoning. Instead, he invited us to decide for ourselves whether the detention of Mr I and the children was lawful. Mr Denholm agreed that this was what we should do.

The argument before us accordingly fell within a very narrow compass. Mr Kovats submitted that the detentions were lawful on 2 October 2008 and remained lawful until the applicants were released on 10 October 2008 or (in the case of Mrs I and the youngest child) 13 October 2008. Mr Denholm accepted the first proposition but not the second, asserting that the detentions had become unlawful following the events of 2 October 2008. When pressed he submitted that everyone should thereafter have been released within 24 hours, that is on Friday 3 October 2008.

In the circumstances there is no need for us to consider either Plender J's reasoning or the attacks on it set out in the grounds of appeal. I do not propose to do so. The only remaining issue lies, as I have said, within a very narrow compass, although it is not without wider sigificance.

It is therefore convenient at this point to retrace our steps and to describe certain further material events which had taken place between 24 September 2008 and 13 October 2008.

It will be recalled that Mrs I had been detained on 24 September 2008 and Mr I and the four children had been detained on 25 September 2008. On 30 September 2008, in relation to the 7 day review required under paragraph 55. 8 of the Enforcement Instructions and Guidance, an official put up a recommendation, giving reasons, that

On 3 October 2008 (the Friday) a more senior official, an SEO. minuted:

At about the same time an immigration officer at Becket House made the following minute:

On 4 October 2008 an official wrote to Mr I's representatives saying that "After due consideration and consulting with the centre which currently holds the family I can find no reason to change the existing arrangements. "

The next recommendation, in relation to the 10 day review required under paragraph 55.9.4 of EIG, came up on 6 October 2008:

The recommendation was accepted on 7 October 2008 by the same official who had been involved on 1 October 2008, though he was now an A/SEO. He minuted:

Further minutes contained in the department's computer records show that the case was being considered the same day, 7 October 2008, by various officials, including one in the JRU (the unit within the department dealing with applications for judicial review). One official minuted:

A minute dated 13 October 2008 on a different file records that documents (unspecified) were faxed to the Treasury Solicitor on 10 October 2008.

Apart from that, the materials we have been shown (which include everything disclosed by the Secretary of State) throw no light on the decision-making process after 7 October 2008. In particular, we have been shown nothing which reveals why, his continued detention having been authorised on 7 October 2008, Mr I was then released on 10 October 2008. Nor have we been shown anything which reveals why, although Mr I and three of the children were released on 10 October 2008, Mrs I and the other child were not released until 13 October 2008.

I should add that the Secretary of State has never filed any evidence, a matter to which I must return in due course.

It will be noticed that the much fuller picture which we now have provides no support for Plender J's inference. Quite the contrary, though that is hardly the fault of the judge, for he was poorly served by the Secretary of State. In saying this I emphasise, however, that I intend no criticism whatever of Mr Kovats. He has explained to us exactly what it was that he said to Plender J and it seems that there was a misunderstanding.

I pause at this point to clear the ground.

The legality of Mr I's and the children's detention - and Mr Kovats correctly accepts that the burden of proof is on the Secretary of State to justify the legality of the detention - depends upon the Secretary of State demonstrating compliance with what have become known as the Hardial Singh principles: see R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704.

The Hardial Singh principles were summarised as follows by Dyson LJ in a familiar passage in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196, at para [46]:

He added at para [47]:

Conversely, as Mr Kovats correctly points out, compliance with the 2001 Rules and the EIG is not a condition precedent to a lawful detention: SK (Zimbabwe) v Secretary of Sate for the Home Department [2008] EWCA Civ 1204 at paras [35], [47]. That said, I agree with Mr Denholm that provisions in the EIG - he pointed in particular, as did Mr Kovats, to paragraph 55.9.4 relating to the detention of families - may be relevant as throwing light upon the question whether, in the circumstances and having regard to all the evidence, there has or has not been compliance with the Hardial Singh requirements.

It can now be seen why Mr Denholm was correct to concede that the detention was lawful down to the point when, on 2 October 2008, the Secretary of State decided to defer Mr I's removal. Hardial Singh requirements (i) and (ii) were plainly met, and nothing had yet happened to bring requirement (iii) into play. Moreover, as Mr Kovats submitted, the original detention was fully within both the letter and the spirit of paragraph 55. 9. 4 of EIG.

Mr Denholm's case is that the events of 2 October 2008 brought Hardial Singh requirement (iii) into play; that the Secretary of State should within 24 hours have recognised that it would not be possible to effect the removal of Mr I and his children within a reasonable period; and that accordingly they should have been detained no longer. On the contrary, he says, they should have been released without further delay. Given that there were children detained, the Secretary of State, he submits, was under a duty to act with particular dispatch.

Mr Denholm points to the judgment of Sir Michael Harrison in R (Adesote) v The Secretary of State for the Home Department [2009] EWHC 1783 (Admin). In that case the claimant had been detained on 29 April 2008. He started judicial review proceedings on 2 May 2008 and was released from detention on 9 May 2008. Sir Michael held (para [39]) that the detention down to 2 May 2008 was lawful. (The fact that this finding was subsequently the subject of challenge in the Court of Appeal is, for present purposes, neither here nor there. ) The question before Sir Michael, exactly analogous to the question before us, was, therefore, whether and if so for how long thereafter the detention remained lawful. On that issue Sir Michael said this (at paras [40]-[41]):

Mr Denholm relies upon this as showing that the detention in the present case - eight days after commencement of the judicial reviews in the case of Mr I and three of the children and eleven days in the case of Mrs I and the other child - was on any basis unduly protracted. Given the involvement of four young children, all under the age of six, the four davs allowed bv Sir Michael Harr ison in Adesote could not, he says, be justified here. In the present case Mr I. Mrs I and the four children should all have been released within 24 hours, that is, on Friday 3 October 2008.

Mr Kovats in response submits that the detention was reviewed regularly after 2 October 2008 and that, given the risk of absconding, as referred to in the detention reviews, the Secretary of Sate acted reasonably in taking until 10 October 2008 - a period of only eight days - to decide that the likely judicial review timescale made it appropriate to release Mr I and his children. So far as concerns Mr Denholm's reliance upon what Sir Michael Harrison had said in Adesote, Mr Kovats submits that, as Sir Michael himself had recognised (at para [35]), these cases are very fact sensitive. There is, and can be, he says, no brightline rule as to how much time can elapse after the commencement of proceedings for judicial review before continued detention becomes unlawful. Everything will turn upon the evidence and the facts of the particular case. Here, he submits, we should find that the detention of Mr I and the children was lawful throughout and should accordingly dismiss the appeal.

In my judgment the correct answer here lies somewhere in the middle of these competing submissions.

I agree with Mr Kovats that there can be no brightline rule determining precisely when, in a case such as this, a detention becomes unlawful. I agree also with Mr Denholm that, once proceedings for judicial review have been commenced, the obligation on the Secretary of State is to proceed with all appropriate dispatch, just as I agree with him that where children are detained the Secretary of State is under a duty to act with particular dispatch. But beyond that it is, as Mr Kovats correctly submits, a question of fact to be decided upon the evidence and the facts of the particular case.

It needs to be emphasised that the mere fact that judicial review proceedings have been commenced neither invalidates the removal directions nor requires a detainee to be released. Whatever may be his practice in the generality of such cases, the Secretary of State is fully entitled to adopt the stance that the removal directions will be implemented unless a judge of the Administrative Court has made an order expressly prohibiting that step, just as he is fully entitled in an appropriate case to seek from the Administrative Court an order refusing the application for an injunction, an order summarily dismissing the application for permission to apply for judicial review (where appropriate coupled with the judge's direction that the application is totally without merit) and an order directing that the renewal of the application for permission is not to be a bar to removal unless a judge of the Administrative Court has expressly so ordered. My experience as a judge of the Administrative Court in the comparatively recent past is that such orders are made not infrequently, for there are, not infrequently, cases where groundless applications totally without merit are made to the Administrative Court by those facing removal or (as the case may be) deportation.

Nor are matters any different merely because the Secretary of State has decided, perhaps for pragmatic reasons because of the shortness of time, not to persist with the originally planned removal. There is nothing to prevent the Secretary of State immediately giving further removal directions for implementation in the very near future and making clear that these new removal directions will be implemented unless a judge of the Administrative Court has made an order expressly prohibiting that step. And where appropriate in such a case, just as in the other, he is fully entitled to seek from the Administrative Court an order refusing the application for an injunction, an order summarily dismissing the application for permission to apply for judicial review (where appropriate coupled with the judge's direction that the application is totally without merit) and an order directing that the renewal of the application for permission is not to be a bar to removal unless a judge of the Administrative Court has expressly so ordered.

But in the present case the Secretary of State did none of these things. Indeed, so far as the Administrative Court was concerned he did nothing at all until on 16 October 2008 - a full fortnight after the commencement of the proceedings on 2 October 2008 - he filed his acknowledgement of service. And even then, although, as we have seen, he asked that permission be refused, asserted that the application was totally without merit and sought an order that renewal of the application not result in the suspension or stay of removal directions, he did nothing else. The reality, I suspect, is that by then the Secretary of State had in any event already 'missed the bus', for if he was minded to pursue the kind of approach which I have referred to above he could and should have done so sooner. And that in fact seems to have been reflected in the Secretary of State's thinking at the time, for he had already released Mr I and the children from detention before filing his acknowledgment of service, and thereafter he had made no attempt to retrieve the situation by the time permission to apply for judicial review was granted on 31 October 2008.

The correct position had been recognised by the official who, on 3 October 2008, minuted that "If Mr I's JR cannot be expedited he should be released." Precisely so. Now the process of coming to an answer to that question should not, in my judgment, have been particularly difficult or time-consuming, for it turned essentially upon the further question of whether or not the Secretary of State was minded to adopt the kind of stance referred to above - and there is nothing in the materials we have seen to suggest that he was.

As late as 7 October 2008 officials were "awaiting further information regarding time scales to removal re JR", though we are not told from whom that information was being sought nor why it was that the answer had not been provided more speedily, just as we are not told why it was that the decision to release Mr I was not taken until 10 October 2008.

Moreover, although the key issue had been correctly identified by 3 October 2008 - namely, that what mattered was the likely timescale of the judicial review proceedings and whether they could be "expedited" - the release of Mr I and his children from detention seems to have been postponed while officials discussed and explored other, and in this context, only marginally relevant factors such as the stance seemingly being adopted by Mrs I, what were called "welfare concerns" and the "custody issue" and the question of whether the children should be split. These were, of course, important issues but unless there was some real basis for a belief that Mr I's judicial review proceedings could be accelerated to such an extent as to make his continuing detention Hardial Singh compliant, they were not issues which really bore upon the central question. That said, we are again hampered by the absence of any evidence supplementing and explaining a rather patchy documentary record which, in some ways, raises as many questions as it answers.

I cannot agree with Mr Denholm that Mr I and his children should have been released on Friday 3 October 2008. The Secretary of State was entitled to at least some more time to explore the likely timescale for the judicial review proceedings. But bearing in mind, first, the fact that the judicial review proceedings had been commenced on Thursday 2 October 2008, and that the removal directions for Mr I had been cancelled the same day, second, the fact that the key question had been identified the following day, Friday 3 October 2008, third, the fact that in the event the Secretary of State took no steps to accelerate the judicial review proceedings, fourth, the fact that there were children detained and, finally, the fact that the Secretary of State has chosen to leave us significantly in the dark as to the decision-making process between 3 and 10 October 2008, I have come to the conclusion that, having regard to the intervening weekend, the decision to release Mr I and his children could, and therefore should, have been taken and implemented on Monday 6 October 2008.

It follows that Mr I and his children were detained unlawfully, in the case of Mr I and three of the children for the four days until they were released on Friday 10 October 2008 and in the case of the other child for the seven days until released on Monday 13 October 2008. For that unlawful detention they are, in principle, entitled to damages. I invite counsel to agree the appropriate forum for assessing those damages if they cannot be agreed.

There is one final matter I need to deal with: the Secretary of State's tardy disclosure of highly relevant documents and failure throughout to file any evidence whatever in relation to the necessarily serious allegation of unlawful detention.

As Mr Denholm points out, the appellants had sought disclosure of the decisions relating to their detention both in the supplementary grounds for judicial review filed on 14 October 2008 and in the skeleton argument dated 6 February 2009 which he prepared for the hearing in the Administrative Court. Apart from the documents referred to in paragraphs [22]-[23] above, which had been disclosed under cover of an undated letter received by Mr I's solicitors on 28 January 2009, none of the key documents had been disclosed by the time of the hearing in the Administrative Court on 9 February 2009. Plender J accordingly had to proceed on the basis of what could "reasonably be inferred" and, as Mr Denholm tartly observes, in the light of the disclosure subsequently given by the Secretary of State the reasons inferred by the judge cannot be correct. Only under cover of the letter dated 24 February 2009 were the documents referred to in paragraphs [16]-[18] and [20]-[21] above disclosed, and even these, as I have observed, left a number of obvious questions unanswered.

In the skeleton argument dated 16 March 2009 prepared for use in this court, Mr Denholm drew attention to these matters and to the fact that the Secretary of State had filed no evidence. He went further, for in the very helpful chronology which formed part of that skeleton argument Mr Denholm, having set out the key extract from the minute of 3 October 2008 ("If Mr I's JR cannot be expedited he should be released"), added this comment, which surely invited some response: "it appears that notwithstanding this assertion, no contact was made with the Treasury Solicitor until 10 October. " Now that assumption may have been right, it may have been wrong - in fact we still do not know, because the Secretary of Sate has not told us - but the point is that the Secretary of State to this day has still filed no evidence. And that is despite Mr Denholm's complaints, despite the grant of permission to apply for judicial review and despite even the grant of permission to appeal by Dyson LJ.

Whatever may be the position at an earlier stage, once permission has been granted to apply for judicial review there is an obligation on the Secretary of State to make

I go first to what Sir John Donaldson MR said in R v Lancashire County Council ex p Huddles tone [1986] 2 All ER 941 at page 945:

I go next to what Lord Walker of Gestingthorpe said in Belize Alliance of Conservation Non-Governmental Organizations v The Department of the Environment [2004] UKPC 6, [2004] Env LR 761, at para [86] (the fact that it was in a dissenting judgment deprives it of none of its force):

I should also refer to what Laws LJ said in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409, [2002] All ER (D) 450 (Oct), at para [50]:

That, I regret to have to say, describes precisely the state of affairs in which we find ourselves in this case. The Secretary of State cannot complain if. in such circumstances, the court draws adverse inferences. We are. after all, here concerned with liberty. Where liberty is in issue the court should not be left to try and make findings as best it can on inadequate evidence. The court should not be left, as Plender J was left and as we, albeit to a lesser extent, have also been left, having to draw inferences; and if the court is left in this position, some explanation should be forthcoming as to why it is.

This is far from being the first occasion when the judges have had to complain about deficiencies in the Secretary of State's response to claims such as the one which is before us. If, despite all this, the court is again left having to draw inferences in such a situation, then the Secretary of State should anticipate that the inferences drawn may well be adverse to him. And that, I have to say, is a very concerning state of affairs; concerning not merely for the reasons I have mentioned but concerning also because it means that on some future occasion an unmeritorious claimant who, in truth, has no legitimate cause for complaint may, because of the way in which the claim is handled by the Secretary of State, recover, and, moreover, recover at the expense of the public, damages and costs to which he is not entitled.

In his skeleton argument before us Mr Kovats recited the Secretary of State's acceptance that the documentary evidence about the reviews of the detention was not before Plender J "and that it would have been preferable if it had been", as also the Secretary of State's acceptance that "it is not clear to what, if any, extent the Secretary of State took account of Mrs I's expressed wish to return to Nigeria." I do not criticise Mr Kovats for those words because, no doubt, he was constrained by his instructions. But I have to say that the word "preferable" is entirely inapt to describe what ought to have been done here. Moreover, the candid admission that matters are still not clear, that is, still not clear even in the light of the disclosure which has taken place since Plender J gave judgment, merely emphasises, it might be thought, the need for proper evidence to have been filed.

I agree.

I agree.