FM v Secretary of State for the Home Department (Rev 1)

This is an appeal from the order of Sir Thayne Forbes sitting as an additional judge of the High Court on 1 March 2010, when he dismissed the appellant’s claim for judicial review of the lawfulness of her detention pending her removal from the United Kingdom.

The appellant was born in Uganda on 1 October 1979. She was married on 19 December 2003. She arrived in the UK on 30 August 2007, when she was 8 months pregnant, and claimed asylum on the following day. Her first son, N, was born on 7 October 2007. While in the United Kingdom the appellant had a relationship with another man, FS. Her second son, A-J, was born on 17 October 2008. The appellant’s application for asylum was refused in February 2008. Her appeal was dismissed by the AIT on 14 April 2008 and following refusal of reconsideration her appeal rights were exhausted on 20 September 2008. On 27 November 2008 a decision was made to remove the appellant and her children to Uganda. She was detained at the Yarl’s Wood immigration removal centre with N, then aged 14 months, and A-J, then aged 7 weeks under the power given to the Secretary of State by paragraph 16(2) of schedule 2 to the Immigration Act 1971. Her claim for judicial review before Sir Thayne Forbes concerned two periods of detention (1) between 7 and 22 December 2008, and (2) between 17 February and 12 March 2009.

On 3 November 2008 a UK Border Agency case worker enquired into the appellant’s family circumstances. FS, who was himself a failed asylum seeker, had, the appellant said, left her when she was 6 weeks pregnant. They had been together for a short time; she knew nothing about him; she had never lived with him; she had not heard from him and she had not been in contact with him since (AB/469). The appellant had used a false passport on arrival with an agent in the United Kingdom and had been issued with IS151A illegal entry papers (AB/484). Notice of an intention to remove on 11 December 2008 was given on 7 December (AB/438). A decision was made to detain the appellant and her children pending removal and they were taken into detention on Sunday 7 December 2008 at Yarl’s Wood. They were issued with reasons for detention on the same day. In the detention review performed on 7 December it was written (AB/481):

“... an immigration enforcement [visit] was made to the home address of the family on Sunday 7 December 2008. The subject and her children were detained under the Immigration Act 1971 pending their removal to Uganda on 11/12/08. The family were generally in good health. [FM] suffered from mild depression, stomach ulcers and migraines. There were no apparent compassionate factors as to why detention and removal could not proceed. In summary detention is necessary to effect removal.

Furthermore, she has previously shown that she is willing to employ deception to evade the UK immigration authorities and there is a risk that she may do so again. It is highly unlikely that the subject will comply with self-check in [sic] removal directions. Detention is furthermore compliant with Article 5(1)(f) European Convention on Human Rights.”

The appellant was served with a notice (AB/453) informing her that the reason for her detention was that “your removal from the United Kingdom is imminent”. She was informed that additional factors comprised the absence of close ties, the use of deception, failure to give satisfactory or reliable answers to an immigration officer’s enquiries and failure to produce satisfactory evidence of her identity, nationality or lawful basis to be in the United Kingdom. The last three of these factors all related to the deception exercised on arrival in the UK.

On reception at Yarl’s Wood on 7 December at 1 pm the appellant was seen at the Health Centre. A questionnaire was completed (AB/325). It was noted that she had recently given birth; she was due for a check up on 15 December. Alongside the question, “Have you ever suffered from mental health problems?” the examiner wrote, “Depression”. No complaint of torture was made. The appellant had no complaint to make.

On 9 December 2008 Refugee Legal Centre (“RLC”) made representations to UKBA in Solihull (AB/538). RLC reminded the Secretary of State of the guidance given in the Immigration Directorate’s Instructions (“IDI”) to the effect that the appellant could not be returned to Uganda before being offered malaria prophylaxis. If Mefloquine was to be used a delay of 2-3 weeks was required to determine tolerance (see paragraph 23 below). Secondly, UKBA was informed that since the father of A-J remained in the United Kingdom there were Article 8 issues which the appellant would wish to raise. RLC sought the appellant’s temporary release and the attention of the Secretary of State was drawn to the need to pay “particular regard ... for the welfare and best interest of [FM’s] two young children who are detained with her”. It was submitted that it would be unreasonable and unlawful for the family to be detained for a period longer than one week.

On the following day, 10 December 2008, RLC wrote (AB/554) to notify the Secretary of State of a “fresh claim” based upon the relationship now claimed to exist between the appellant and the father of her second child. At paragraph 14 of the letter the Secretary of State was asked to note that:

“I have been instructed by my client that she and her children are ready and willing to undertake the malaria prophylaxis. She also requests that she be provided with sufficient anti-malarial medication to last her and her children for at least 2 months should she be returned ...”

The Article 8 representations were supported by a statement dated 10 December 2008 (AB/559) in which the appellant claimed that although A-J’s father had returned to London they had kept regularly in touch; he had visited her on many occasions; and she spoke to him on the telephone several times a day. These assertions were completely contrary to the appellant’s account given to the case worker on 3 November 2008 just over a month before (see paragraph 3 above). The fresh representations were supported by a statement from the father (AB/562). He said that he had a daughter by another woman in the United Kingdom whom he visited 2 or 3 times a week. He too claimed that he had visited the appellant on several occasions since the birth of their son and spoke to the appellant several times a day.

On the same day, 10 December, Nurse Quinn at Yarl’s Wood Health Care weighed the two children. She sent a fax to UKBA (AB/663) in which she said:

“Both of these children weigh under 11 kg, therefore Malarone is not licensed for use as a malaria prophylaxis. There is no alternative that can be used if RDs [removal directions] are tomorrow due to the length of time needed for the drug to be effective. Hence we have not been able to issue malaria prophylaxis at this time.”

On 11 December 2008 Ms C Coyle of Removals Logistics UKBA replied to RLC rejecting the fresh claim and confirmed an intention to remove (AB/564). Ms Coyle rejected RLC’s representations and declined to treat them as a fresh claim. As to the issue of malarial prophylaxis, she wrote:

“...Health Care at Yarl’s Wood have confirmed that they cannot give the children Malarone as they are underweight for that particular drug. I consider that detainees are made aware of the availability of prophylaxis when they first enter detention. I also consider that your client will have seen a nurse when she first arrived and has had twenty four hour access to a doctor while in detention. As it has been an option for your client since entering detention and considering sections 5.3 – 5.5 in the IDIs I consider that removal remains appropriate in this instance. You have provided no evidence from a doctor to show that it has been deemed necessary that your client’s children have prophylaxis and I also consider that the UK Border Agency have acted appropriately and according to our published policy in this regard.”

On the same day RLC sent an urgent facsimile to UKBA (AB/567) informing them of advice received on 10 December from Dr Saha at the Darleston Health Centre (AB/569) to the effect that the family should not be removed until each of them had received malaria prophylaxis. A period of at least 2 weeks would be required for the immunisation to take effect. The appellant had, shortly before her detention, been visited by a Sure Start family support worker, Leanne Sheard, who described her condition as “terribly low” (AB/573). A Health Visitor at Darleston Health Centre, Maria Cooke, had on 19 November 2008 described the appellant’s “reactive depression” for which she had been receiving anti-depressant medication from a community psychiatric nurse (AB/571). In Ms Cooke’s opinion:

“Her low mood is causing her to be forgetful & neglectful of her children’s needs. At present this situation is being closely monitored and [MF] is receiving support from the local Sure Start.”

A claim for judicial review was issued and notified to UKBA on the evening of 11 December (AB/574). Further representations were made supporting the appellant’s application for release from detention.

On 11 December 2008 an Executive Officer, Sarah Stuart, reviewed the detention and noted, “The family have no lawful basis in [sic] which to remain in the UK. Further representations of 9 December 2008 have been refused and RDs remain in place for 11 December 2008. ?Maintain detention to effect removal” (AB/492). Upon issue of the claim for judicial review, removal directions were, however, deferred (AB/495). Nurse Quinn notified the “case owner” on 11 December that she considered it inappropriate to oppose bail in the light of the advice she had given concerning malaria prophylaxis (AB/523). However, Higher Executive Officer, Stuart Skaife, approved a decision on 11 December to maintain detention because “Removal imminent” (AB/493). On 12 December 2008 UKBA Midlands Enforcement Unit notified RLC that their request for release was refused for the following reasons (AB/577):

“(1)

Your client is likely to abscond if given temporary admission or release.

(2)

Your client does not have enough close ties, (e.g. family or friends) to make it likely that they will stay in one place.

(3)

On initial consideration it appears that your client’s application may be one which can be decided quickly.

(4)

Your client has used, or attempted to use deception in a way that leads us to consider your client may continue to deceive.

(5)

Your client has not produced satisfactory evidence of your client’s identity, nationality or lawful basis to be in the UK.”

On 15 December the appellant telephoned her case owner while “distraught” (AB/523). On the same day the appellant’s detention was reviewed by EO Sarah Stewart (AB/492). She intended to maintain detention until it was known whether judicial review proceedings could be expedited; a decision was expected within the next couple of days. The appellant was served with a notice IS91R that she was being detained because she was likely to abscond, she did not have close ties, her [judicial review] application may be one which could be decided quickly, she had used deception and had not provided satisfactory evidence of her identity, nationality or lawful basis to be in the UK (AB/455). On 16 December HEO Stuart Skaife confirmed the decision, as follows (AB/490):

“10 Day review – Time scale for dealing with JR awaited. I agree to maintain detention at least until it is known the JR is to be expedited. Yarl’s Wood are aware of our concerns relating to Ms [FM] and her telephone call to the case owner on 15/12.”

On 17 December the appellant was admitted to hospital complaining of stomach pains and suspected appendicitis. She was referred by a nurse practitioner, Michelle George (AB/327). She was discharged the following day after examination and tests (AB/328, 331) and prescribed an antibiotic. In the meantime her children were left in the care of social workers at Yarl’s Wood. On 19 December the appellant’s bail application was heard by an immigration judge. He refused to grant bail certifying(AB/536):

“I find that the applicant comes within one or more of the restrictions on the grant of bail contained in paragraph 30(2) of the Second Schedule to the Immigration Act 1971, namely: ...the applicant is suffering from a mental disorder and continued detention is needed in his [sic] interests or for the protection of others ...and it is not appropriate to grant bail for that reason.”

A review of detention was held on 23 December by EO S Croft who noted that the appellant was due to have an x-ray examination for TB. Yarl’s Wood regarded the appellant as “unsuitable to cope with detention as she has a two year old child [sic]. Therefore the family should be released.” The Courts were in Christmas “recess” and the likelihood of a speedy outcome was unknown. The family had reported as required in the past. Removal was no longer imminent and release was appropriate (AB/499). On the same day the appellant and her children were temporarily admitted and returned to their former accommodation. When seen at reception at 11.45 am on 23 December the appellant “responded well to questions”; no significant concerns were noted; the appellant denied being in pain or discomfort (AB/332).

On 8 January 2009 UKBA wrote to RLC. In a 13 page letter (AB/ 581) the Judicial Review Unit declined to treat further representations as a fresh human rights claim. As to malaria prophylaxis, it was noted that Mefloquin required a 2 -3 week incubation period but, “There are other drugs with a shorter time requirement.” As to prospective removal it was said:

“It is considered, with reference to IDI 5.5, removal should not be delayed once new removal directions are in place for your client. Yarlswood have a medical centre by the name of Serco whose clinical nurse consultants are qualified to prescribe the correct dosage of Malaria Prophylaxis to your client’s children dependent on the age and weight...”

The author maintained the stance previously taken on 11 December 2008 (that RLC had provided no evidence that the children required prophylaxis) but set out the British National Formulary for Children which advised incubation periods of between 1 – 2 days and 2.5 weeks depending upon the prescription deemed appropriate. As to the appellant’s medical condition, it was concluded that upon return to Uganda she would have access to medication for the treatment of her reactive depression.

On 27 January 2009 the application for judicial review was considered on the papers by Geraldine Andrews QC (sitting as a deputy High Court Judge) and the application was refused as “wholly without merit”. The judge made a direction that renewal of the application should constitute no bar to removal.

On 3 February 2009, RLC served on the Secretary of State a psychiatric report prepared by Dr Alec Frank of the Medical Foundation for the Care of Victims of Torture (AB/608). In his report (AB/367) Dr Frank expressed the opinion that the appellant had, as she told him, when a child been repeatedly raped by an uncle and was currently suffering from a depressive episode of moderate severity with several symptoms of post-traumatic stress. On 10 February 2009 the Secretary of State rejected the “fresh claim” (AB/611).

On 17 February 2009 the appellant and her children were again detained pending removal on 23 February 2009. On 18 February N, by now aged 16 months, was prescribed Malarone beginning 1-2 days before departure, and A-J, then aged 4 months, was prescribed Mefloquine to be commenced 2½ weeks prior to departure. The following day Nurse Quinn provided Mefloquine for A-J. However the appellant did not administer the drug to A claiming that he was unwell. Notwithstanding the advice from Dr Bell, Nurse Quinn informed the Secretary of State that the drug to be given to the younger child should be taken a week before departure. The removal directions for 23 February were cancelled as follows:

“In the circumstances please defer the removal direction and arrange for them to be re-set after obtaining confirmation that the family are fit to travel and that they are immune from catching malaria on their arrival in Uganda.”

Removal directions were re-set for 2 March 2009.

On 20 February RLC served amended grounds for judicial review relying upon the report of Dr Frank and a supplementary report from Professor Oliver Furley. A stay of removal directions was sought pending final determination of the judicial review. For the first time a claim was made for unlawful detention. On 23 February Cranston J, apparently unaware that the original removal directions had been cancelled, refused interim relief observing that he could see nothing unlawful about the detention of the claimant and her children pending removal. On 24 February 2009 the appellant and her children were examined by Dr Goldwyn who provided a report which was served on the Secretary of State on 27 February. In her opinion A-J should be given 3 weeks after taking Mefloquine to assess its effect.

On 26 February Refugee Migrant Justice (RMJ), the successor to RLC, issued an application notice seeking a further stay of removal relying upon the report of Dr Goldwyn and the advice of Dr Bell, and sought an urgent oral permission hearing. The following day the removal directions were cancelled because chicken pox had broken out at Yarl’s Wood. They were reset for 10 March 2009, the day of the oral permission hearing.

On 4 March 2009 Dr Wadout advised that Mefloquine should be administered to A-J. On 10 March 2009 Frances Patterson QC granted permission at the oral hearing on all grounds save Article 8. Of the claim for unlawful detention, she observed that it was “just about” arguable. As a result the removal directions were again cancelled and on 12 March 2009 the appellant and the children were released from detention.

On 19 November 2009 the Secretary of State conceded that the appellant had a fresh claim. That aspect of the judicial review proceedings therefore became redundant. The Secretary of State refused the fresh claim. The appellant appealed against the decision and on 25 March 2010 Immigration Judge Iqbal allowed the appeal on refugee and Article 3 grounds. The claim in respect of unlawful detention proceeded to a hearing on 25 and 26 November 2009. Judgment was handed down on 1 March 2010.

The oral hearing before this Court took place on 29 March 2011. The decision of the Supreme Court in R (Lumba) v SSHD [2011] UKSC 12, [2011] 1 WLR 1763 (detention under an unlawful policy) had been published on 23 March 2001, but their Lordships decision in the linked appeal of Kambadzi v SSHD [2011] UKSC 23 (detention in breach of policy) was awaited. Since the issues arising in Kambadzi, in particular, were thought to be relevant to the lawfulness of detention in the present appeal, the Court, at the suggestion of the parties, postponed its judgments to permit further written argument if necessary. We have received further written argument from the appellant dated 7 June and from the respondent dated 6 June 2011.

I shall next set out the legislative framework and the relevant parts of the Secretary of State’s published policy concerning the exercise of the power to detain.

The Secretary of State’s statutory power to detain derives from paragraph 16 (2) of schedule 2 to the Immigration Act 1971 which provides:

“(2)

If there are reasonable grounds for suspecting that a person is someone in respect of whom directions [for removal] may be given ... that person may be detained under the authority of an immigration officer pending –

(a)

a decision whether or not to give such directions;

(b)

his removal in pursuance of such directions.”

A power to grant temporary admission to the UK without detention or release from detention is granted by paragraph 21(1) of schedule 2 without prejudice to a later exercise of the power to detain. By paragraph 1(3) of schedule 2 immigration officers must act in accordance with instructions given by the Secretary of State to the extent that they are not inconsistent with the immigration rules (see paragraph 26 below).

The scope of the power under schedule 3 to detain in deportation cases was identified by Woolf J (as he then was) in R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704. On further examination by the Court of Appeal in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196, Dyson LJ (as he then was) at paragraph 46 confirmed the principles as follows:

(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, he should not seek to exercise the power of detention at all;

(iv)

The Secretary of State should act with reasonable diligence and expedition to effect removal.

It is common ground that these principles apply equally to cases of removal under schedule 2. A fuller analysis to the same effect is to be found in the judgment of Lord Hope in Kambadzi at paragraphs 9 – 12.

The relevant policy was contained in the Secretary of State’s “Enforcement Instructions and Guidance”, (“EIG”) chapter 55. The policy included, as stated in November 2008, the following: By 55.1.1 there was in general a presumption in favour of temporary admission or release; wherever possible, alternatives to detention should be used. Detention would most usually be appropriate in order to (a) effect removal (b) establish a person’s identity or basis of claim, or (c) prevent a failure to comply with conditions attached to the grant of temporary admission or release. Detention must be used sparingly and for the shortest period necessary (55.1.3). When the justification for detention was a fear of failure to comply with conditions of temporary admission or release there must be strong grounds for believing that the person would not comply with those conditions. All reasonable alternatives to detention must be considered before detention is authorised and each case must be considered on its individual merits (55.3). A number of factors were listed at 55.3.1 as relevant to consideration of the need for initial or continued detention. They included the likelihood of a person being removed and the period within which removal would take place; evidence of previous absconding; evidence of previous failures to comply with conditions of temporary release or bail; a determined attempt to breach immigration laws by means, for example, of entry in breach of a deportation order, or clandestine entry; a history of failing to comply with the requirements of immigration control; ties with the United Kingdom including the presence of close relatives or dependence upon a person within the United Kingdom and a settled address or employment; any incentives in place for the person concerned to remain in communication, such as the merits of an outstanding appeal; any risk of offending or harm to the public; whether the subject was a child, had a history of torture or physical or mental ill-health.

In the case of foreign nationals liable to deportation (Immigration Act 1971, schedule 3) the following guidance appeared at 55.3.2.4:

“In all cases, case workers should consider on an individual basis whether removal is imminent. If removal is imminent, then detention or continued detention will usually be appropriate. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks. Cases where removal is not imminent due to delays in the travel documentation process in the country concerned may also be considered for release on restrictions. However, where the FNP [foreign national] is frustrating removal by not co-operating with the documentation process, and where that is a significant barrier to removal, these are factors weighing strongly against release.”

Although the guidance applies specifically to foreign nationals convicted of criminal offences the test of imminence is habitually applied to those subject to detention under schedule 2. At 55.6.3 imminent removal from the United Kingdom is given as one of the six possible reasons for detention specifically listed in Form IS91R for completion and delivery to the person concerned.

The Secretary of State’s policy on the detention of families was set out at 55.9.4:

“The decision to detain an entire family should always be taken with due regard to Article 8 of the ECHR ... families, including those with children, can be detained on the same footing as all other persons liable to detention. This means that families must be detained in line with the general detention criteria (see 55.1). Form IS 91 must be issued for each person detained including for each child. Detention of an entire family must be justified in all circumstances and ... there will continue to be a presumption in favour of granting temporary release. ... as a matter of policy we should aim to keep the family as a single unit. However, it will be appropriate to separate a child from its parents if there is evidence that separation is in the best interest of the child. Local authority’s social services department will make this decision. As long as the child is taken into care in accordance with the law, and following a decision of a competent authority, Article 8 of the ECHR will not be breached. ... No families should be detained simply because suitable accommodation is [not] available.”

Those deemed by 55.10 to be considered suitable for detention in only “very exceptional circumstances” included unaccompanied children and young persons under the age of 18, and people “suffering from serious medical conditions, or the mentally ill”.

The appellant relies upon Article 3 of the United Nations Convention on the Rights of the Child (“UNCRC”) which states:

“(1)

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

(2)

States parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her and, to this end, shall take all appropriate legislative and administrative measures.

(3)

States parties shall ensure that the institution, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, and in the number and suitability of their staff, as well as competent supervision.”

Article 37 (b) of the UNCRC states:

“(b)

no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity of the law and shall be used only as a measure of last resort and for the short appropriate period of time.”

On 22 September 2008 the United Kingdom announced that it was withdrawing its reservation to the UNCRC in its performance of immigration and citizenship functions.

In December 2008, under powers provided by Section 21(2)(a) of the UK Borders Act 2007, the UKBA issued its code of practice for keeping children safe from harm. Section 21 required the Secretary of State to issue a code of practice “designed to ensure that in exercising functions in the United Kingdom, the Border and Immigration Agency takes appropriate steps to ensure that while children are in the United Kingdom they are safe from harm”. The code came into force on 6 January 2009. Among those international instruments recognised in the Code by UKBA was the UNCRC. At paragraph 1.6 UKBA was required to act in accordance with a number of principles including:

“The best interest of the child will be a primary consideration (although not necessarily the only consideration) when making decisions about his or her future.”

At paragraph 1.7 the UKBA would seek to ensure that children were treated in a way that safeguarded them, promoted their welfare and promoted their upbringing by their parents. Children should be seen as children rather than simply as migrants subject to immigration control or as adjuncts to a principal applicant. At paragraph 1.12 the code acknowledged that it did not “create any new or overriding duty which will interfere with the UK Border Agency’s primary function; namely to uphold the integrity of the immigration control system, and in doing so, to apply the immigration legislation, the immigration rules and the relevant policies of the Secretary of State for the Home Department”.

The Secretary of State’s policy on the detention of families including children was restated in chapter 3 of the Code. There is always a presumption in favour of not detaining a family and each family’s case must be considered on its individual merits (3.2). No family should be detained unless there is a realistic prospect of removing the family from the United Kingdom within a reasonable period of time (3.3). While in detention there should be a continuous pattern of care existing between the parents and their children (3.5). Nursing mothers and their children should not be separated at any stage unless there is a compelling reason that involves the safety of the child involved (3.6). When detention extends beyond 2/3 days, steps must be taken to ensure that children are not put in a position of placing their lives on hold. They should be permitted to maintain voluntary personal links. Their education and medical records should be available in the place of detention (3.9). Detention of children beyond a period of 28 days must be reviewed and personally authorised by a home office minister (3.16).

From2 November 2009, well after the release of the appellant and her family, section 55 Borders, Citizens and Immigration 2009 created the following obligation upon the Secretary of State in succession to section 21 of the UK Borders Act 2007.

“55 Duty regarding the welfare of children

(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.”

This family was to be removed to Uganda. The Secretary of State’s policy on inoculation and other preventative treatment against malaria applied. The policy was set out in Chapter 1 Section 8 paragraphs 5.1-5.12 and an appendix in the Immigration Directorate’s Instructions (“IDI”), February 2007 version, which in its relevant parts provided as follows:

“Malaria prophylaxis

5.7

Preventative treatment for malaria is a special case in that medication must be taken shortly before travel. People detained prior to removal may not therefore be able to make the necessary arrangements for themselves. Any malaria prophylaxis recommended as appropriate by the removal centre medical staff for pregnant women and children under 5 should normally be provided and time allowed for it to take effect before removal. The guidance by the advisory committee on malaria prevention ... should be followed and copies of it should be given to the detainees concerned. Specialist advice (according to the relevant condition or age of the detainee, which can be obtained from a helpline), should be provided for pregnant women, children under 5 and those with medical conditions which might contra-indicate the prophylaxis. In the event of adverse side-effects, time should also be allowed to obtain and follow further medical advice. Removal need not be deferred in any case where a detainee declines (on his or her own behalf or on behalf of a dependent child) to take malaria prophylaxis that has been provided on medical advice.

5.8

It should be noted that paragraph 4.8 of the ACMP advice states that “Mefloquine [also known as Larium] is generally started with a 2-3 week window usually to determine tolerance if it has not been used before. If removal is delayed, stopping and re-starting the prophylaxis regime should not be a problem.” In the case of an adverse reaction to Mefloquine (which may produce psychotic side effects) or other prophylaxis, removal centre health care staff should seek advice about alternative medication ...”

The type of prevention appropriate to Uganda is stated (for category 4) in a table attached to the instructions:

“Mosquito bite prevention plus either mefloquine, doxycycline or atovaquone-proguanil ...”

At paragraph 5.12 a period of 3 weeks was recommended for treatment with Mefloquine and a period of 2-3 days for treatment with Malarone before removal.

In his further written submissions Mr Dunlop for the Secretary of State points out that while the British National Formulary recommends an incubation period of 2½ weeks for Mefloquine it does not state the minimum period before the prophylaxis becomes effective. The Electronic Medicines Compendium suggests that a period of at least one week is required. However, the policy upon which both parties relied before Sir Thayne Forbes was that set out at paragraph 35 above. Mr Dunlop does not argue that any other policy applied.

In her amended grounds dated 19 February 2009 the appellant challenged the Secretary of State’s refusal to treat her further representations of 9, 10 and 11 December 2008, and 3 February 2009, as a fresh claim for asylum and human rights protection under paragraph 353 of the Immigration Rules; she alleged breaches of the malaria prophylaxis policy in ordering removal prematurely; she challenged the Secretary of State’s refusal to withdraw removal directions set for 29 February 2009; and she claimed that decisions to detain the appellant and her children from 7 to 22 December 2008, and from 17 February 2009, were unlawful.

As to the claim in respect of the first period of detention, the appellant asserted that, since removal could not be effected within a “short time”, detention on 7 December 2008 was unlawful. In any event, it was claimed, the appellant should have been released once removal directions were cancelled on 11 December 2008. The purported justification that the appellant was likely to abscond was manifestly ill-founded. As to the claim in respect of the second period of detention, the appellant argued that by reason of the requirement of policy for malarial prophylaxis it could not be said that removal was imminent.

Mr Dunlop conceded on behalf of the Secretary of State that detention in breach of the Hardial Singh principles or of the Secretary of State’s own policy (Nadarajah v SSHD [2004] INLR 139 (CA) at [37], [68]-[69] and [72]) would render the detention unlawful. The decisions of the Supreme Court in Lumba and Kambazdi confirm the correctness of Mr Dunlop’s concession. At paragraph 51 of Kambazdi, Lord Hope expressed the view of the majority as follows:

“51 The question then is what is to be made of the Secretary of State's public law duty to give effect to his published policy. In my opinion the answer to that question will always be fact-sensitive. In this case we are dealing with an executive act which interferes with personal liberty. So one must ask whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he has under the statute. Unlike the 2001 Rules, chapter 38 of the manual is concerned with the lawfulness of the detention. That is made clear in the opening paragraphs: see para 18, above. It has been designed to give practical effect to the Hardial Singh principles to meet the requirement that, to be lawful, the measures taken must be transparent and not arbitrary. It contains a set of instructions with which officials are expected to comply: see Schedule 2 to the 1971 Act, para 1(3). As I see it, the principles and the instructions in the manual go hand in hand. As Munby J said in para 68, the reviews are fundamental to the propriety of continued detention. The instructions are the means by which, in accordance with his published policy, the Secretary of State gives effect to the principles. They are not only commendable; they are necessary.”

It was common ground before Sir Thayne Forbes and in argument before this Court that the Secretary of State’s policy upon the detention of families (paragraphs 26 – 28 above) qualified the power to detain in the present case. It was argued for the appellant that detention after 11 December 2008 (the day on which the claim form was issued) was in breach both of the family detention policy and the malarial prophylaxis policy. Ms Knights further contended:

Mr Dunlop argued on behalf of the Secretary of State that it was reasonable for her to conclude that if the family was detained on 7 December 2008 there would be no obstacle to removal on 11 December because prophylaxis (Malarone) requiring an incubation period of 4 days could be administered. Continued detention was warranted since, once the true position emerged, prophylaxis requiring a period of a “week or two” could be administered; a reply to the appellant’s further representations could be made within a matter of days; the appellant’s application for leave to pursue a claim for judicial review could be expedited. For these reasons removal remained imminent. Between 16 and 22 December the appellant was herself too ill to return to her accommodation. When it was apparent that the application might not be expedited and the appellant was well enough to return to her accommodation with her children, she was released.

As to the second period of detention, Mr Dunlop argued that a detention for a prospective period of 3 weeks between 17 February and 10 March, the date set for removal, was justified since throughout that period removal was imminent. When, for unforeseen reasons, it was necessary to cancel the removal date, detention remained lawful because it was necessary to ensure that removal was not frustrated by the appellant’s failure to administer prophylaxis to her children. Furthermore, removal remained imminent. Permission to proceed to judicial review of the appellant’s detention was given on 10 March 2009. The Secretary of State acted reasonably in responding within two days to the need to release the family to suitable accommodation.

The judge accepted Mr Dunlop’s argument that removal remained imminent between 7 and 22 December 2008. At paragraph 34 of his judgment he said:

“34.

For his part, Mr Dunlop submitted (correctly, in my view) that the correct question is not so much whether removal was "imminent" as at 11^th December 2008 but, insofar as there is any difference between the two ways of expressing the matter, whether there remained a reasonable prospect of removal within a reasonable period of time: see Hardial Singh. As he pointed out, it is clear that there was initially every reason in this case for considering that the judicial review proceedings could be expedited so as to be concluded within a period of 28 days or so and that the issue of appropriate malarial prophylaxis could be properly addressed within the same general timescale (although not so as to enable removal to go ahead on 11^th December 2008: see paragraph 10 above). In my view, on that basis the Secretary of State was entitled to conclude that removal remained "imminent" and/or possible within a reasonable period of time (see R (WM) v SSHD [2007] EWHC 2562 (Admin)at paragraph 56) even though fresh removal directions had not been set: see R (Ahmed) v SSHD [2008] EWHC 1533( Admin).”

The judge’s reasoning applied to both periods of detention. As to the period between 10 and 12 March 2009 the judge said at paragraph 40:

“40.

As for the period from 10^th March to 12^th March 2009, I accept Mr Dunlop's submission that a period of two days for the Secretary of State to respond to the outcome of the renewal hearing was not unreasonable, given the size of the Home Office, its workload and the administrative steps that are necessary when releasing a family into appropriate publicly funded conditions.”

The appellant seeks to raise three grounds of appeal which were not argued in the court below: (1) The judge failed to take account of and apply Art 3 and Article 37(b) UNCRC concerning the special position and best interests of children, (2) The judge failed to take account of and apply EIG 55.10 which required “very exceptional circumstances” before a person who was “mentally ill” should be considered for detention, and (3) the judge failed to find unlawful detention which continued between 10 and 12 March 2009.

The appellant drew attention to paragraph 4.77 of the Government White Paper “Secure Borders, Safe Haven” acknowledging that “Although true of all decisions to detain, it is especially important in the case of families that detention should be used only when necessary and should not be for an excessive period”, and EIG 55.1.3 and 55.3 to the effect that detention should be used sparingly and only when and for as long as necessary. The appellant argued that it was manifestly unnecessary to detain this family and the judge was wrong to decide otherwise.

A further ground of appeal rehearsed the argument before Sir Thayne Forbes that the Secretary of State failed to act under her relevant malarial prophylaxis policy. It was not lawful to keep the appellant and her children detained for an uncertain period once it was known that removal was not “imminent” because appropriate prophylaxis had not been administered. I shall consider first the argument that the judge misinterpreted the Secretary of State’s policy.

The appellant contends that the judge was wrong to treat as synonymous the terms “removal is imminent” (EIG 55.3.2.4) and “removal within a reasonable period of time” (Hardial Singh and R (I) v SSHD). The former, which represents the Secretary of State’s policy, provided the appellant with a greater degree of protection from detention than the latter. It is submitted by Mr Husain that the judge was wrong to treat the question whether the appellant would have been and was detained for a reasonable period of time as the true test for lawfulness of detention when, under the policy, the question to be posed by the Secretary of State at all relevant stages was whether removal was imminent. Imminence cannot, Mr Husain argues, be demonstrated by knowledge that removal cannot take place for two or three weeks.

In my view, Mr Husain’s argument involves a misinterpretation of the policy. The power to detain is provided by paragraph 16(2) pending a decision whether to give removal directions, or pending removal pursuant to removal directions already made. The Secretary of State was required on Hardial Singh principles: (i) not to use the power to detain arbitrarily, (ii) to detain only for a period which was “reasonable in all the circumstances”, and (iii) not to exercise or further to exercise the power to detain if it became apparent that deportation could not be effected within that reasonable period (R (I) v SSHD). The Secretary of State’s instructions, Chapter 55, defined the manner in which case workers were required to act when exercising the statutory authority to detain. A number of circumstances were identified as being relevant to the question whether the power should be used at all (see 55.3.1 at paragraph 26 above), among them the “likelihood of a person being removed and the period within which removal will take place”. This requires an exercise of judgement by the case worker.

The Secretary of State advised that case workers must consider (55.3.2.4) whether removal is imminent; if so, “detention or continued detention will usually be appropriate”. It seems to me that the issue for this Court is whether the Secretary of State, by using the word “imminent” placed a policy restriction on the circumstances in which the power to detain would be exercised more onerous than that imposed by the Hardial Singh principle of reasonableness. The Secretary of State’s guidance should, of course, be read in the light of other important policies such as those concerning children and mental health, which are themselves circumstances relevant to the issue whether the power to detain should be exercised at all. The instruction provides, as a guide to case workers, that “removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks”. I do not accept Mr Husain’s submission that the policy imposed a further restriction upon the exercise of the power, that an imminent removal must mean removal within a few days. The guidance itself contemplates that removal is imminent when no obstructions to removal are present and removal will take place within a period of four weeks. This part of the guidance is not, in my view, to be read as if it is a substitute for the Hardial Singh principles but as an application of those principles. Read in that way it is clear, first, that the use of the word “imminent” is not intended to replace “reasonable time in the circumstances”, second, that the guidance seeks to demonstrate what would be reasonable in the circumstances and, third, imminence is equated with a period of weeks.

Neither the test of imminence, nor the advice to treat the circumstances identified as satisfying the test of imminence, defines the legal requirements for exercise of the power to detain, which remains whether the Secretary of State properly assessed the need to detain for the purposes of removal and her ability to remove the appellant within a period which was reasonable in all the circumstances. A period which is shorter than four weeks may be unreasonable in the circumstances (such as the existence of dependent children or mental illness) and a period longer than four weeks may be reasonable in other circumstances (such as the determination of the detained person to escape removal). The Secretary of State has merely provided guidance to case workers as to the way in which Hardial Singh principles should be applied to their cases. The outcome of an application of the guidance will depend upon the particular circumstances of each case.

I do not conclude that Sir Thayne Forbes was, at paragraph 34 of his judgment, in error when he identified the prospect of removal within a reasonable period of time, rather than imminence, as the appropriate legal test, or, subject to the other circumstances of the case, in treating a period of weeks as both a removal within a reasonable period of time and as an imminent removal. The judge was not then considering the question whether there were breaches of other policies which rendered detention unlawful and, therefore, contrary to Dyson LJ’s principle (i); he was examining only whether principle (ii) was satisfied. Sir Thayne Forbes made no error of law in this respect. Whether the Secretary of State applied her own malarial prophylaxis or children or mental health policies are separate questions to which I shall need to return later in this judgment.

Mr Husain argues that the Secretary of State wrongly assessed removal as imminent when, as a matter of fact, the children could not be removed on 11 December, the date set for removal, before they had received prophylaxis. I have already concluded that imminence (in the sense of removal within a few days) was not a requirement of policy. I accept that the case worker made a mistaken assumption as to the ability of the children to receive prophylaxis within the time (4 days) contemplated; I also accept that the suggestion made in correspondence that the onus was upon the appellant to establish the need for prophylaxis was wrong. The policy does not, however, require the Secretary of State not to detain when prophylaxis is required. It requires that prophylaxis shall be offered before removal and once taken it must be given time to take effect. Nevertheless, it was the view of the judge that the evidence established that the mistake could be cured within a reasonable period (about three to four weeks). Such a time scale was reasonable and did not offend principle (ii); neither did it offend policy because imminence within the meaning of the policy was a period of some four weeks. If the judge was correct in his analysis of the other circumstances I agree with his assessment of reasonableness in respect of both periods of detention. The Secretary of State was entitled to act upon the knowledge that prophylaxis could be administered and take effect within a reasonable period. If she was right to conclude that prophylaxis could be administered to take effect within a four week period removal, in my view, remained imminent during both the first and second periods of detention.

The same considerations apply to the appellant’s issue of a claim for judicial review on 11 December 2008. Expedition, if it could be obtained, would ensure that the application could be heard and, if necessary, renewed within a reasonable period.

I accept Mr Husain’s submission that whether a period of four weeks or so is reasonable in all the circumstances is not a question which is capable of being defined by the Secretary of State in her policy. I have also found, however, that the policy did not contemplate by “imminent” something radically different from a period of four weeks or so. As I have accepted above, a period of four weeks may be unreasonable depending upon the circumstances. The question whether it was reasonable in the present case depends upon an examination of other aspects of the Secretary of State’s policy and their application to the present facts. This Court held in A (Somalia) v SSHD [2007] EWCA Civ 804 that it was for the Court to judge whether a period of detention was reasonable and therefore compliant with the Hardial Singh principles. The Court will not be bound by the Secretary of State’s estimate of four weeks as reasonable if in all circumstances it was not. The Wednesbury test does not apply to an examination of the decision to detain since the decision involves the liberty of the subject and must be fully justified at common law.

The Yarl’s Wood Health Care manager, Nurse Quinn, in a letter of 10 December 2008, notified UKBA that because both children weighed under 11 kg Malarone was not licensed for use. No alternative would take effect in time for removal on the following day. It followed that the family could not be removed in accordance with the directions to remove on 11 December. The judge, at paragraph 37, held that the inability to remove on 11 December did not render detention unlawful under principle (i) because the Secretary of State was able to administer an alternative prophylaxis within a reasonable time. Within that time removal directions could be re-issued. Mr Husain argues that the judge’s conclusion was not open to him upon the evidence. The medical record for 10 December (AB/350) indicates that A-J did not weigh enough (6 kg) to be provided with any prophylaxis. It follows, Mr Husain argues, that the Secretary of State could not have been satisfied that removal of the family could be effected within any particular period because she could not foresee when A-J would gain sufficient weight to receive Mefloquine.

I do not accept Mr Husain’s analysis. Nurse Quinn limited her advice to the removal which was due to take place the following day. By referring to an alternative which could not take effect in time, the implication was that while a faster-acting prophylaxis was not available, a slower-acting prophylaxis would be. The medical record shows that on 12 December A-J’s weight had in fact risen to 6.08 kg which made him suitable to receive Mefloquine and may well explain the terms of Nurse Quinn’s facsimile letter. The evidence demonstrates that UKBA was justified in concluding that removal could take place within a reasonable time. It is not demonstrated that any material error of fact was made. There is no dispute that A-J maintained the minimum weight. Each child was, therefore, able to receive prophylaxis which would take effect within two to three weeks of administration. In my judgment, Sir Thayne Forbes was entitled to conclude that there was no breach of principles (i) or (ii) established on account only of the application of the malarial prophylaxis policy.

It was no part of the appellant’s case before Sir Thayne Forbes that the Secretary of State acted unlawfully in failing to release the appellant on 10 March rather than 12 March 2009, although both Mr Dunlop in his skeleton argument (para. 41) and the judge in his judgment (para. 40) referred to the need for administrative arrangements for release of the family to appropriate publicly funded conditions. The limit of Ms Knights’ argument was that the renewal of the application to an oral hearing should have been enough to require release.

Mr Dunlop observes that if the Secretary of State had notice of the argument that the Secretary of State was dilatory in her release of the appellant she could have sought evidence to justify the two day period. However, Mr Husain’s submission is one of law, namely that the Secretary of State enjoyed no power or discretion to delay release while examining the practical consequences of release in the appellant’s own interests. Her obligation was, he submits, immediately to inform the appellant of her right to be released. If administrative steps were necessary to ensure the safety of the family on temporary admission then it was for the appellant to decide whether she wished or not to take advantage of them. In my view, the Court should receive these submissions. The issue is one of liberty of the individual and is identifiable as a pure matter of law requiring consideration. I would not, however, be prepared to entertain an argument whether there was in fact a need to consider the administrative consequences of a change of circumstances before release was actually achieved. I accept Mr Dunlop’s submission that we should proceed upon the judge’s finding there was such a need.

I have already expressed my opinion that the test for the lawfulness of a period of detention is one of reasonableness. The obligation of the Secretary of State is to cease detention when it becomes clear that detention is no longer required to effect removal but, in my view, common sense demands that a short period of grace is required for the decision-making process to take place which may include a decision as to the management of the detainee on release. First, there is, I think, a distinction between cases in which it is clear that removal directions will not be re-set (e.g. upon grant of ILR) and those in which the decision whether to re-set removal directions depends upon the outcome of proceedings (as in the present case). The Secretary of State will in the latter cases be concerned to ensure that she is kept aware of the whereabouts of the released detainee. That may require administrative arrangements for appropriate accommodation to be made available. I do not think that the Secretary of State is bound to release without regard to a residual risk of absconding (see, for example, R (Wang) v SSHD [2009] EWHC 1578 (Admin)). Secondly, I do not consider, as Mr Husain argues, that the Secretary of State’s assumption of responsibility for the welfare of these two children in detention can lightly be segregated from a responsibility to take reasonable steps to ensure that they are properly accommodated on release. There is no policy of the Secretary of State which requires case workers to turn detainees out of a detention centre without first ensuring that they can survive. On the contrary, it is the policy of the Secretary of State (EIG 55.6.3) that detention may be necessary “whilst alternative arrangements are made” for the detainee’s care (provided, of course, that the purpose of detention was to effect removal). It is not difficult to envisage circumstances in which the Secretary of State could be said to be acting in dereliction of the duty undertaken by the act of detention if she took no action but to release the detained person immediately removal within a reasonable period became, as a matter of fact, not possible.

I note that in R (Ahmed) v SSHD [2008] EWHC 1533 (Admin), the claimant, while having been entitled to release from detention, remained in detention for a period of four days while arrangements were made to obtain accommodation for the claimant and her family. No claim was made in respect of that period of four days because it was accepted that the original detention was lawful and at the stage when the claimant was entitled to release those same enquiries would have been required. In R (Rabbi) v SSHD [2010] EWHC 2074 (Admin), the question arose whether the claimant was unlawfully detained when removal directions had been set to remove him to Somalia via Mogadishu. Beatson J held that detention was lawful until the Secretary of State was notified under Rule 39 of the Rules of Court of the ECtHR of an interim measure which it considered should be adopted (in that case, conditions in Mogadishu). A Rule 39 indication usually led to a deferral of removal. The notification took place on 3 August 2009 but the claimant was not released until 7 August. Beatson J said at paragraph 90 of his judgment:

“90....Accordingly...where the defendant was notified of the Rule 39 indication on 4 August and addresses for the claimant (whether the NASS address or the alternative address that had became available in Bristol) only became available and supplied to the defendant in the early afternoon of 7 August, it cannot be said that the defendant did not act with appropriate dispatch in directing the claimant’s release later that afternoon.”

Our attention was drawn to the observations of Sedley LJ, delivering the judgment of the Court, in SSHD v Abdi [2011] EWCA Civ 242 upon the subject of the difficulties sometimes encountered by trial judges when identifying a date upon which detention became unlawful. At paragraphs 61 and 62 he said:

“61.

In some cases it may be very difficult, applying Hardial Singh principles, to identify any particular date on which detention has ceased to be lawful. Any date will inevitably be "arbitrary" to some extent, and adopting the date of the judgment may well be the best that the judge can do on the available evidence. However, in the present case, allowing a reasonable time for those officials in the Home Office responsible for authorising Mr. Abdi's continued detention to appreciate the implications of the HOPO'S concession at the resumed Tribunal hearing on 12^th December 2008, it should have been, even if it was not, obvious to them by the 19^th December 2008 that it was not going to be possible to effect removal within a reasonable time, so that detention was no longer justified.

62.

The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.”

It was thus recognised by this Court that the reasonableness of the length of detention will depend not just upon the legal consequences of an event relevant to justification for detention but upon the reasonable ability of the administrative officer to respond to them.

Mr Dunlop relied upon the observations of Lord Slynn of Hadley (with which their Lordships agreed) in a linked but separate context in R (Saadi) v SSHD [2002] UKHL 41, [2002] 1 WLR 3131. The House of Lords was examining the legality of a policy to detain, for a period of up to 7 days, those whose claims for asylum required examination, pending examination and pending a decision whether to grant leave to enter. The cases of some of those detained would, on examination, not be susceptible to fast-track decision making. It was argued that the policy was arbitrary because it did not depend upon an assessment of the risk of absconding. The power to detain in such circumstances was given by paragraph 16(1) of schedule 2. At paragraphs 24 – 26 Lord Slynn said:

“24.

There is obviously force in the argument for the claimants that if there is no suggestion that they might run away then it cannot be strictly necessary to detain them as opposed to requiring them to comply with a fixed regime enabling detailed examination to take place. This, however, ignores the reality—large numbers of applicants have to be considered intensively in a short period. If people failed to arrive on time or at all the programme would be disrupted and delays caused not only to the individual case but to dealing with the whole problem. If conditions in the centre were less acceptable than they are taken to be there might be more room for doubt but it seems to me that the need for speed justifies detention for a short period in acceptable physical conditions as being reasonably necessary.

25.

This does not mean that the Secretary of State can detain without any limits so long as no examination has taken place or decision been arrived at. The Secretary of State must not act in an arbitrary manner. The immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making.

26.

Statutory powers of this kind must be exercised reasonably by government, at any rate in the absence of specific provision laying down particular timescales for administrative acts to be performed. An analogous application of this principle is to be found in judgments dealing with the detention of those who are or may be subject to deportation. Thus in R v Government of Durham Prison, Ex p Hardial Singh[1984] 1 WLR 704 at 706 Woolf J said in relation to the power of deportation:

"As the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case".

I accept that the concept of reasonableness applies equally to the moment of practical termination of detention as it does to the decision whether to detain at all. I do not consider that principle (ii) can properly be applied so as to deprive the Secretary of State of any room for decision making and other necessary administrative arrangements once a reasonable period for removal has expired. That would be to reduce the common law principles upon which the statutory power should be exercised to absurdity. Nevertheless the Secretary of State must act reasonably and if, contrary to good administration, there is simply a delayed response continued detention will be unlawful. Sir Thayne Forbes decided, in the absence of challenge from the appellant, that it was necessary for enquiries to made as to suitable accommodation to which the family could be released and, in my judgment, that was a decision in law available to him. I do not consider it established that the period of detention for two days before final release was unlawful.

The appellant’s case on appeal is that there is a more stringent test for the lawfulness of detention when children are concerned. Mr Husain relies upon a series of cases decided in the Administrative Court for the proposition that the Secretary of State must have regard to the best interests of the children as a primary consideration (R (S, C and D) v SSHD [2007] EWHC 1654 Admin; R (Nukajam) v SSHD [2010] EWHC 20 Admin; and R (Suppiah) v SSHD [2011 EWHC 2 Admin).

Mr Dunlop complains that this is an assault upon Sir Thayne Forbes’ conclusions of fact when no such representations were made to the judge. The Secretary of State’s policy (EIG 55.9.4) makes clear that the same considerations apply to the detention of families as to the detention of individuals. In S, C and D Wyn Williams J examined whether the Secretary of State’s policies upon detention of children were lawful. At paragraph 27 he said:

“27...However, upon the basis of the statements of Ministers to which I have referred I accept that it is envisaged that when dealing with families with children the key elements identified above should be applied with a degree of rigour that may be absent when adults alone are being considered.”

The judge concluded at paragraph 44:

“44.

In my judgment, it is open to significantly greater debate whether the Defendant's policy in 2005 on detention generally as it applied to families with children is unlawful. On balance, however, I have reached the conclusion that it is not. As I have indicated above the policy consists of a number of key elements. Although these key elements are not phrased in an identical manner to the phraseology of the relevant articles of UNCRC, in my judgment the Defendant's policy is compatible with the general thrust of the Articles of UNCRC. In this field, it is not appropriate, in my judgment, to seek out linguistic niceties when comparing an international convention with a domestic policy so as to make an assessment of whether the policy conforms with the international convention. Rather, in my judgment, the Court should consider whether the two are compatible when they are compared fairly and objectively and in the round. Viewed in that light, there is no material difference between Article 37(b) which prohibits the deprivation of liberty of a child in an arbitrary fashion and specifies that detention shall be used a measure of last resort and for the shortest appropriate period of time and a policy which demands that detention must be used only where all reasonable alternatives are discounted and for the shortest period necessary. Further, the fact that the interests of the child must be a primary consideration when taking action in respect of a child cannot preclude detention in all circumstances. Obviously, on occasions, other factors must be taken into account in deciding upon the proposed course of action.”

In R (Suppiah) v SSHD and Others at paragraph 25 Wyn Williams J, having examined the family and children policies to which I have referred, concluded:

“25.

...I propose to proceed on the basis that the proper interpretation of the Defendant’s policy is that detention of families with children should be authorised only in exceptional circumstances. That accords with the evolving understanding of the policy over time; it also means that the suggestion contained in the written policy that families with children can be detained on the same basis as any other person liable to removal can be regarded, quite properly, as redundant.”

However, the submission made to Sir Thayne Forbes was not that detention should not have occurred at all but that from 12 December 2008 there was no ground for detention of the appellant with her children which outweighed the policy that detention of families should be a last resort. It is now argued that Sir Thayne Forbes failed to consider, at paragraphs 37-40 of his judgment, the special position of a family with young children.

Mr Dunlop complains that this is another factual challenge of which the Secretary of State has had no adequate notice. She was not called upon to justify these decisions against the tests now advanced, only to the extent that the malaria prophylaxis policy was applied to them. The policy which applied at the times of the decisions under consideration was EIG 55.9.4 (para. 28 above). It is submitted that the appellant is seeking to place a gloss upon the policy which it was not capable of bearing at the time the relevant decisions were made and do not justifiably bear now. In my judgment, policy 55.9.4 was at the relevant time to be applied with the UK’s obligations under Art 3 and Art 37(b) UNCRC in mind. While the UK had entered a reservation in respect of the Convention as it applied to “entry into, stay in and departure from the United Kingdom on those who do not have the right under the law of the United Kingdom to enter and remain”, that reservation was withdrawn in November 2008. I also agree with Wyn Williams J that the Secretary of State’s policy was consistent with the UK’s obligations towards children under the Convention. In effect, all other reasonable possibilities were to be considered before a family with children was to be detained. That was the test which the judge was required to apply.

I consider that this court should entertain the appellant’s appeal based upon the application of the Secretary of State’s family detention policy. In her skeleton argument Ms Knights advanced her grounds for contending that the Secretary of State acted in breach of her family detention policy once removal directions were cancelled on 11 December 2008. She submitted (at para. 60) that none of the grounds for further detention identified in the respondent’s letter of 12 December 2008 (para. 10 above) bore examination. She identified the existence of the presumption (para. 60.1), the lack of a history of absconding (para. 60.3), the appellant’s indifferent health and her responsibility for two small children (para. 60.4), the lack of particulars of the allegation that she may use deception to avoid removal (para. 60.6) and the immateriality of the assertion that the appellant failed to reveal her true identity on arrival (para. 60.7).

Sir Thayne Forbes set out the terms of the Secretary of State’s letter of 12 December 2008 at paragraph 13 of his judgment. At paragraph 14 he summarised the reviews carried out on 15 and 16 December supporting the detention while enquiries were made as to possible expedition of the appellant’s application for judicial review. He recorded, at paragraphs 32 and 33, Ms Knights’ submission that detention was in breach of the family detention policy. The judge considered that submission at paragraphs 34 and 35 of his judgment. He concluded at paragraph 34 (see para. 37 above) that, having made the decision to detain, continued detention was lawful while it could be achieved within a reasonable time. However, the judge did not engage with the primary argument which was that the reasons given for continued detention did not bear scrutiny when weighed with the requirements of the family policy. In my view, that submission required an analysis which it did not receive. I have already accepted Mr Dunlop’s argument that the judge accurately interpreted the Secretary of State’s policy as to the imminence of removal, but there was a further issue which was whether the time within which removal could be achieved was reasonable having regard to the circumstances of this family. That required an analysis of the justification not just of the length of the period but of the reasons given for the decision to detain at all.

I have therefore considered the evidence for myself. At paragraphs 3 – 10 above I have recorded the facts as they were known to those who had the responsibility for the decision to detain. Just days before detention the appellant had given an account of her relationship with the father of A-J which was utterly at odds with the fresh claim now being advanced on her behalf, supported by her signed witness statement at AB/559. The Secretary of State was advised that the appellant was preoccupied and depressed at her predicament. Until the fresh claim was advanced there was no evidence of significant ties to the community. Contrary to the submission made by Mr Husain I accept that there were proper grounds for detention based upon the risk that the appellant would resort to any means at her disposal to evade removal. Those means may have been limited but as the facts appeared on 12 December 2008 the Secretary of State was justified in concluding that the risk of absconding was real. It was plainly not in the best interests of these children to separate them from their mother. It was manifestly in their interests that they should stay with their mother. In these circumstances I conclude that the application of the family detention policy was lawful.

In my judgment the same considerations apply to the decision to detain the family on 17 February 2009. I note that when making written representations on 17 February (AB/627), RLC relied solely upon an assertion that the Secretary of State had failed to apply her malaria prophylaxis policy. RLC wanted an assurance that the family would not be removed before receiving the appropriate prophylaxis. This time, there was no question of the family being removed without it. Events were, however, overtaken by the chickenpox outbreak at Yarl’s Wood. A decision was taken to continue detention provided that an imminent removal date could be set, unless quarantine was extended in which case release would be sought (AB/510). On 23 February 2009 Cranston J observed that he could see nothing unlawful about the detention at that time. I accept the Secretary of State’s submission that, since there was every reason to believe that the appropriate prophylaxis could be administered in time for removal within a period up to three weeks after detention, the decision to maintain detention was lawful. In my view, the appellant has not established that detention was unlawful on the ground of failure to apply the family detention policy (including the need to detain only as a last resort).

It is submitted for the first time before this court that the appellant was mentally ill and therefore a person to whom the Secretary of State’s policy EIG 55.10 applied (see para. 29 above). The appellant relies upon the report of Dr Frank served on 3 February 2009 in which he expressed the opinion that the appellant was suffering from “a depressive episode of moderate severity”. The appellant had, he said, a pre-disposition to depression caused by a history of rape as a young girl, the loss of her parents and a difficult relationship with her grandparents, which had been re-awakened by the appellant’s recent experiences in Uganda. Thus it is asserted that the appellant should not have been detained save in very exceptional circumstances.

In my judgment, this court should decline leave to argue this ground of appeal. Notice of this ground did not appear until the grounds were amended in a document dated 15 December 2010. As Mr Dunlop rightly submits, had this ground been raised in the court below, the Secretary of State would have been required (1) to investigate (a) what consideration had been given to the appellant’s state of mental health throughout her period of detention, (b) what evidence was available to the case workers as to the state of the appellant’s mental health and (c) whether any decision concerning the appellant’s state of mental health was sustainable; (2) to marshal the evidence for the hearing. It would not follow, for example, that because the appellant was low in mood or “depressed” in reaction to her predicament that she should properly have been regarded or was regarded as mentally ill. I do not agree with the submission made by Mr Husain that the mere receipt of Dr Frank’s report renders this ground unanswerable. This court does not have the evidence upon which to reach its own decision. If the appeal were to succeed on this ground it would require a further hearing in the High Court at public expense.

While I accept that this court has the discretion to permit a new argument to be developed which was not the subject of argument below, it is a discretion which must be exercised in the interests of justice. Not only was this argument not raised below but it was conceded that detention was lawful until 12 December 2008. Where, as here, the opposite party could and probably would have responded to the argument presented on appeal by adducing relevant evidence, it seems to me that the interests of justice are not met. I accept that there are, in addition, issues of construction of the policy which would require consideration. Mr Dunlop submits that viewed as a whole chapter 55.10 is designed to apply to those few people who suffer from a disabling mental illness such as psychosis. The policy should not, he submits, be construed as applying to all those who suffer from a mental condition however “mild” or “moderate” its symptoms. While any mental ill health will be relevant to the issue whether an alternative to detention is reasonably available, it does not follow that every person who is suffering from depression will be excluded from detention, particularly when other factors of importance suggest that detention is required in order to achieve removal. It is possible that evidence would be required to explain the working of the policy in practice. For the reasons I have given I do not consider the present appeal to be the occasion when these issues should be resolved.

I am not persuaded that Sir Thayne Forbes erred in his conclusion that the appellant and her family were lawfully detained and I would dismiss this appeal.

I agree.

I also agree.