Introduction

This is an appeal from an order/orders (dated 16 January and 15 April 2014) of His Honour Judge Sycamore (sitting as a Judge of the High Court) whereby the judge ordered that the Respondent’s detention by the Appellant in the periods between 21 January and 18 March 2008 and between 27 August and 17 September 2008 were unlawful, giving rise to a claim to general damages in respect of the first period and (by agreement of the parties recited in the court’s second order) to nominal damages in the case of the second period. The drafting of the two orders mentioned above leaves something to be desired and gave rise to some confusion at the hearing as to the extent to which those orders reflected the judge’s ultimate conclusions. The points of substance now to be resolved on this appeal are not, however, difficult to identify. The appeal is brought by permission finally granted by Sales LJ on 21 February 2015.

Background Facts

The summary that follows was helpfully provided in the skeleton argument of Miss Anderson for the Appellant as to which there seemed to be no dispute.

The Respondent is a Colombian national who entered the United Kingdom unlawfully and made an asylum claim on 1 May 1999. The claim was refused on 28 November 2001 and an initial appeal was dismissed on 31 January 2003. After appeal from that decision, the case was remitted for reconsideration but the Respondent’s claim was dismissed again on 10 February 2005. The Respondent was found not to have given credible evidence. After those proceedings, the Respondent’s appeal rights expired on 1 March 2005. In the meantime, and in the course of the proceedings just outlined, on 2 April 2003, in the Central Criminal Court after a trial before His Honour Judge Machin QC and a jury, the Respondent was convicted of kidnapping and blackmail and was sentenced to a total term of 5 years imprisonment; he was recommended for deportation. Notice of decision to deport was given to the Respondent on 8 March 2005. On 19 May 2005, on conclusion of the custodial portion of the criminal sentence, the Respondent was detained for the first time under immigration powers. On 27 July 2005 a deportation order was served and removal directions were set for 4 September 2005. Unfortunately, the Respondent’s disruptive behaviour prevented removal being effected on that occasion. On 6 September 2005 solicitors on his behalf submitted further representations to the Appellant, purporting to be a “fresh claim”, but those representations were rejected. That decision was challenged by judicial review leading to a new decision being taken by the Appellant, again rejecting the claim, on 6 February 2006. On 29 August 2006, the Respondent was released from the detention to which he had been subject since the May of the previous year.

On 17 September 2007 the Appellant served the Respondent with further notice of liability to deportation, inviting representations as to why such deportation should not be carried out. That led to further representations on the Respondent’s behalf, based upon assertion that he was unlikely to re-offend and relying upon Article 8 rights based upon his relationship with his partner and the birth of a child on 25 August 2007, and upon Article 3 arguments not dissimilar it seems from points made in the earlier failed asylum claims. These representations were rejected on 25 November 2007. A letter of that date was apparently served on the Respondent on 4 December 2007. However, at this stage, it seems things started to go wrong.

What the Appellant failed to do was to serve, at the same time as the letter of 25 November, a “Notice of Decision” (AIT1), notifying the Respondent of a decision to refuse to revoke the deportation order of 26 July 2005. Such a notice would have informed the Respondent in precise terms of a right of appeal. It is accepted by the Appellant that this was an oversight. In evidence in the current proceedings, the Respondent stated that, notwithstanding this omission, he asked an interpreter (whom he identified by name) to assist in the lodging of an appeal. It seems that, if the Respondent had been served with proper notice of such a decision, any right of appeal would have expired on 19 December 2007.

At this time the Respondent was on bail from immigration detention and was detained once more, on complying with reporting requirements of that bail, on 21 January 2008. He was then served with removal directions for 25 January 2008. On the same day, solicitors on his behalf, believing that notice of a relevant decision had been duly served, applied to the Asylum and Immigration Tribunal (as it then was) (“AIT”), under rule 10 of the Immigration and Asylum Appeals (Procedure) Rules 2005, for permission to appeal out of time. The application was rejected, also on the same day, by a Senior Immigration Judge who concluded that there were “no special circumstances” disclosed which would permit the grant of an extension of time in which to appeal. However, that evening Mr Nathan for the Respondent managed to persuade the duty judge of the Queen’s Bench Division that the Respondent’s removal from the country should be stayed, pending judicial review proceedings, and an order was made accordingly.

In accordance with an undertaking given to the duty judge at the time of the making of the order on 25 January 2008, the present proceedings were issued on 29 January 2008, challenging the removal directions and the Tribunal’s order refusing an extension of time in which to appeal.

In the meantime, the Respondent remained in detention and his position was reviewed on 21 February 2008. It appears that he had applied to the AIT for bail on 6 February, but had withdrawn that application. On the review, it was decided to continue detention on the grounds that there was reason to believe that the Respondent would fail to comply with release conditions, because of his previous failure to leave the UK when required to do so and because of his absence of ties rendering it unlikely that he would stay in one place.

On or about 6 March 2008, as we are told, the error in December 2007 in failing to serve the notice of decision came to light – how this happened is not clear. It seems that it was decided in the Appellant’s department to serve the Respondent with such a notice. A copy document of that character (undated) appears in the appeal bundle; the appeal bundle index states that its date was 14 March 2008. We are told that, following service of that notice, the Respondent initiated another appeal. The Respondent was released on bail on 18 March, thus bringing to an end the first period of detention.

On 2 May 2008, the Respondent was arrested in connection with an assault on his former partner and on 27 August he pleaded guilty to a criminal charge (unidentified in the papers) and was sentenced to 6 months imprisonment. Given the date of his arrest, it seems that the custodial part of that sentence was immediately at an end, but he was then detained again under immigration powers on 28 August and remained so detained until 17 September when he was again released on bail. That was the second period of detention ultimately challenged in the proceedings.

On 8 October 2008, on the determination of his appeal against the decision of November 2007 triggered by the subsequent notice in March, a reconsideration was ordered once more. On that reconsideration, which, for some unexplained reason, was not completed until 13 July 2010, the Appellant again refused to revoke the deportation order made 5 years previously in July 2005.

A further appeal followed and we are told that it was successful (on 24 May 2011) to the limited extent of permitting the Respondent to remain in the UK until the completion of proceedings relating to his child. However, on 26 July of that year the Respondent was convicted of yet another offence, this time burglary and was sentenced to 1 year and 8 months imprisonment; he was once more recommended for deportation. Notwithstanding that recommendation which no doubt the Appellant received with enthusiasm, it took until 8 March 2012 for a further decision to be made not to revoke the deportation order that was nearing seven years of age.

On 19 February 2013, the Respondent was finally deported to Colombia.

The Proceedings

As indicated already, the proceedings as originally issued were fairly narrowly limited to a challenge to the removal directions of January 2008 and to the Tribunal’s refusal to extend time for the bringing of an appeal against what was thought to have been an immigration decision served on 4 December 2007. There was no challenge to the lawfulness of detention.

In the light of the history that I have outlined, these first issues lapsed and the proceedings, as finally amended, were confined to seeking declarations as to the unlawfulness of the detention of the Respondent, in the two periods which I have mentioned, and damages. It appears that permission to apply for judicial review in this amended form had been granted by Stewart J on 10 May 2013. In his judgment under appeal, Judge Sycamore records that the Appellant had at that stage conceded that the Respondent had been unlawfully detained pursuant to the operation of the unlawful and unpublished policy considered in R (Lumba) v Secretary of State for the Home Department[2011] UKSC 12, but was entitled to nominal damages only, on the basis that he would have been lawfully detained in any event. The Respondent continued to assert that the Appellant had also failed to comply with the relevant published policy and that he was entitled to general damages.

The Appellant’s stance before the judge (recorded in paragraphs 12 and 13 of the judgment) was that while no notice of decision not to revoke the deportation order had actually been served in December 2007 it was believed that there had been such service and that the Respondent also believed that he had been given such notice, this being demonstrated by his asking the translator for assistance with an appeal. Thus, the Appellant argued, sufficient notice had been given or, if it had not, the omission was immaterial.

The judge noted in his judgment that the letter actually served in December 2007 had not said expressly that the Appellant had decided not to revoke the deportation order, which was the decision that would have triggered the statutory right of appeal. The judge recited the requirements in the regulations that notice of an immigration decision must be given and that the notice must contain, or be accompanied by, advice as to the right of appeal. He noted that the document eventually served in March 2008 contained this information. Thus, the judge found the Appellant had failed to serve notice of an appealable immigration decision and that, without it, there was never any prospect of “imminent removal” sufficient to justify detention.

The crux of the judge’s decision in respect of the first period of detention can be found in paragraphs 20 and 22 of the judgment where the judge said this:

In respect of the second period, the judge held that detention would have been justified for the prevention of disorder and crime and there was, therefore, no claim to general damages in respect of that period. Thus, taking account of the concession, the court’s order of 16 April 2014 somewhat opaquely records as follows:

Permission to appeal to this court was initially granted, on 14 July 2014, by Sir Stanley Burnton on the basis that, as he saw the matter, the order of 16 April 2014 did not reflect the judgment handed down, in that the judge appeared to reject entirely the claim in respect of the second period. This may have been because he shared my initial failure to appreciate the limited concession by the Appellant in respect of the impact of Lumba, as recited in that order. A further order, granting permission to appeal more generally, was made by Sales LJ on 10 February 2015.

The Appeal and my conclusions

On the present appeal, Miss Anderson for the Appellant took three points.

First (“Ground 1”), she argued that the Judge erred in not finding that the Appellant’s authority to detain derived from the recommendation for deportation made by Judge Machin QC in sentencing the Respondent in April 2003 so that (under the statute) any alleged public law error by the Appellant in making the decision to detain could not give rise to any liability in damages. In this respect she relied upon the decision of this court in R (Francis) v Secretary of State for State for the Home Department [2014] EWCA Civ 718.

Secondly (“Ground 2”), it was submitted that the Appellant was entitled to rely in good faith on prior administrative acts and a decision of the statutory appellate authority as both being valid when making the decision in issue. In the absence of evidence that the decisions taken were obviously wrong they could properly be relied upon. The Appellant, it was argued, was entitled to rely on the decision of the AIT refusing to extend time for an appeal even if it transpired that there was a flaw in that decision which invalidated it. Miss Anderson relied upon Secretary of State for the Home Department v Draga[2012] EWCA Civ 842.

Thirdly (“Ground 3”), it was argued there was no material public law error in this case since (as per ground 1) the authority to detain derived from the recommendation for deportation, and, in any event “the allegations did not permit the quashing of the Secretary of State’s decision in retrospect” (skeleton argument paragraph 47). It followed that the question was whether the Respondent would have been detained (absent any relevant error) and whether such a decision would have been lawfully open to the Appellant. Miss Anderson argued that the judge assumed that the Respondent would not have been detained in any event and that that assumption was wrong.

Summarising the further points made in support of this third submission, Miss Anderson’s point (taken from paragraph 52 of the skeleton argument) was that a correct application of the Lumba case would have required the judge to ask whether the Respondent would have been detained had the procedural error not been made, i.e. if the notice of decision had been properly served at the appropriate time. She argued that the failure to serve the notice of decision at the correct time had caused no material error because all parties worked on the hypothesis that valid notice of a right of appeal had been given. On an application of the “but for” test, if there had been no error in service the appeal would still not have been effectively exercised and detention would have followed in any event.

Miss Anderson’s skeleton argument contained certain points arising out of the “concession” (to which I have referred) made by the Appellant during the course of the proceedings that the Appellant had been detained under the unlawful policy considered in Lumba. However, she did not pursue those points at the hearing and, as it seems to me, in any event, they do not take the argument any further than the three grounds which I have tried to summarise above. Moreover, the Appellant’s Notice only challenges the order of (sic) 14 January 2014 and the finding of entitlement to general damages in respect of the first period of detention. The entitlement to nominal damages in respect of the second period, recorded in the order of 15 April 2014 is not called into question.

It will be seen, therefore, that the arguments for the Appellant before this court were considerably wider in range than those presented to Judge Sycamore.

Miss Anderson’s first point – that the Appellant’s power to detain arose and continued from the obligation to detain flowing from the recommendation for deportation itself – depends upon the proper construction of the relevant detention powers and obligations. These are to be found in section 5(5) of, and Schedule 3 to, the Immigration Act 1971. Section 5(5) provides:

The relevant parts of schedule 3 at the relevant time were (as was common ground) those set out in Miss Anderson’s skeleton argument at paragraph 23 as follows:

The absolute obligation (and hence power) to detain, arising from the recommendation for deportation, upon which Miss Anderson relied for this first ground, is to be found in paragraph 2(1) of Schedule 3. It can be seen that when a recommendation for deportation has been made, and until a deportation order is made, the subject of the recommendation is required by this provision to be detained under this paragraph, if he is not already detained pursuant to a sentence or order of the court. This obligation applies unless the Secretary of State directs release or the subject of the recommendation is released on bail.

In this case, the sequence of events was: sentence and deportation recommendation (2 April 2003), end of custodial part of sentence (19 May 2005) deportation order (27 July 2005), release on bail (29 August 2006).

Thus, sub paragraph (1) required that the Respondent be detained until the making of the deportation order from 2 April 2003 until 27 July 2005, unless he was already detained serving his sentence. In fact, he was in custody serving his sentence until 19 May 2005. Therefore, looking at the language of the statute alone, sub-paragraph 2(1) bit from that date in May until 27 July when the deportation order was made. This is because the recommendation for deportation was in force and he was no longer detained in pursuance of his sentence. Accordingly, sub-paragraph 2(1) directed that “he shall… be detained pending the making of a deportation order in pursuance of the recommendation…”, unless certain exceptions applied, which they did not. When the order was made on 27 July 2005, at that stage under sub-paragraph 2(3), there was still an obligation to detain him because he was “already detained by virtue of sub-paragraph (1)…”: see the words in parentheses in sub-paragraph (3), “unless he [was] released on bail or [the Appellant] direct[ed] otherwise”.

On 29 August 2006, however, the Respondent was released on bail. Accordingly, on the statutory language, it seems to me that the obligation to detain the Respondent under sub-paragraph 2(1), which began with the recommendation for deportation and continued pending the making of the deportation order, came to an end on 29 August 2006 when he was released on bail. Thereafter, by virtue of the deportation order being in place, the Appellant retained a discretion to detain the Respondent under sub-paragraph 2(3). Indeed, it appears from the documents that it was that discretion which the Appellant expressly invoked on 10 January 2008 when deciding to take the Respondent back into detention, a decision implemented on 21 January.

For her part, however, Miss Anderson argued that on the return to detention in January 2008, the relevant authority to detain still derived from sub-paragraph 2(1) as being a mandatory obligation to detain under that paragraph. Accordingly, no error of public law by the Appellant in making the decision to detain or to continue to detain could give rise to any liability in damages. For this purpose she relied upon the decision of this court in R (Francis) v Secretary of State for the Home Department[2015] 1 WLR 567.

In that case, the court held that there was a contrast between the discretionary power to detain under sub-paragraph 2(2) and the obligation to detain under sub-paragraph 2(1). Further, sub-paragraph 2(3) had the effect that, following the making of a deportation order in respect of a person already detained under either sub-paragraph 2(1) or 2(2), the detention was to continue on the same basis. Thus, the detention of a person who had been detained under sub-paragraph 2(1) continued, under sub-paragraph 2(3), to be pursuant to the statutory authority and, so long as that authority lasted, an action for false imprisonment could not be maintained in respect of the detention so authorised.

In my judgment, however, that is not to say that the authority/obligation to detain under sub-paragraph 2(1), which is expressly provided to terminate upon a decision of the Appellant to release or upon a release on bail, revives when the Secretary of State decides to detain once more (as in this case) or when bail is revoked.

It is to be noted moreover that the Francis case can be immediately distinguished from the present case on its facts. The detainee in that case remained in continuous detention from the date of the recommendation for deportation, through the expiry of his criminal sentence and up to and beyond the making of a deportation order, until his ultimate release on bail. All the periods of detention under challenge in his case related to periods prior to that final release. The detention had begun under sub-paragraph 2(1) and the obligation to detain under that sub-paragraph continued under sub-paragraph 2(3), because he remained in detention at the time of the deportation order and there had been no release either on bail or by decision of the Secretary of State. It was not a case, like the present, where there had been detention pursuant to sub-paragraph 2(1), continued under sub-paragraph 2(3), followed by a release on bail and then a new detention thereafter. It seems to be, therefore, that the statutory obligation to detain ended with that release.

It should be noted further, in my judgment, that even the detention under the statutory authority of sub-paragraph 2(1) is not unlimited. In Francis it was held that the final period of detention, although found to be pursuant to an authority conferred by sub-paragraph 2(1) and continued by virtue of sub-paragraph 2(3), was subject to a presumed intention of Parliament to restrict the authority to detain to cases for which that authority to detain was conferred. As Moore-Bick LJ put it in that case (at [47]-[48]:

I, therefore, do not accept Miss Anderson’s first argument.

Given the broad ambit of the various arguments raised under this head of appeal and the rather different area of dispute decided by the learned judge below, it seems to me to be the easiest and fairest course to analyse the position in law, as it appears to me to be, with regard to the situation as it developed from 25 November 2007 to 18 March 2008 on the facts as found by the judge.

It was common ground here and below that on 25 November 2007, the Appellant reached a decision to reject the Respondent’s latest applications for asylum, humanitarian protection and Article 8 claims. It was also accepted that at or about the same time the Appellant had decided once more not to revoke the deportation order of April 2005 and had intended to serve notice of that decision also. The letter communicating the first decision was served on or about 4 December 2007. The Appellant’s officials also thought that notice of the second decision had been served at the same time (although, to my mind, the wording of the subsequent detention minute of 10 January 2008 is somewhat opaque on this point). Accordingly, working on the assumption that any rights of appeal had expired on the 19 December 2007, the Appellant decided on 10 January 2008 to detain the Respondent, because his removal was thought to be imminent and he was likely to abscond. That decision was served (together with removal directions for 25 January) on 21 January 2008 and the Respondent was detained on that day.

Given the existence of the deportation order, there was clearly a power to detain under paragraph 2(3) of Schedule 3 to the Act, and given the situation as the Appellant thought it to be, it is difficult to see how that decision to detain was rendered unlawful, simply because of an omission formally to serve the notice of the decision not to revoke the deportation order. It seems to me that so much is clear from the judgment of Millett LJ in Ullah v Home Office [1995] Imm AR 166 (quoted in Draga at [45]) as follows:

At this stage there was no question of the Appellant relying upon the decision of the AIT which was only made subsequently on 25 January 2008. Equally, however, when that decision did become known to the Appellant, clearly demonstrating that the Respondent’s advisers believed that a right of appeal had arisen which they had sought to invoke on the Respondent’s behalf, the Appellant can hardly be blamed for thinking that continued detention was justified. I accept Miss Anderson’s submission that the Appellant was entitled to consider that any right of appeal had been exhausted and that detention remained justified: see by analogy Draga at [65]-[66] per Sullivan LJ, deciding that the Secretary of State would be entitled to consider the end of a right of appeal against the decision to make a deportation order as a lawful basis to make a deportation order and to detain the subject under sub-paragraph 2(3) of Schedule 3.

Next, the present judicial review proceedings were launched on 29 January 2008, contesting the removal directions and the AIT’s refusal of an extension of time in which to appeal, but no challenge was made to the lawfulness of the detention. As already noted, on 6 February 2008, the Respondent made an application to the AIT for bail but that was withdrawn on 11 February. Again, this hardly suggests that the continuation of detention was unlawful at that time. The detention was reviewed on 21 February when it was decided to continue it because of an asserted reason to believe that conditions attached to temporary admission would not be complied with. (It was not then said by the decision-maker that removal from the country was imminent).

No doubt at this stage question marks would have begun to arise as to whether detention could be justified much longer in view of the pending judicial review proceedings. Indeed, it was on or shortly after 21 February 2008 (the first amended grounds of claim are so dated) that the first challenge to lawfulness of detention was made, but then only on the basis that the decision maker had been wrong in deciding that the Respondent would not comply with conditions of temporary admission. No complaint was made on the basis that it was no longer being said by the Appellant that removal from the UK was imminent. The review of 21 February indicated that the case would continue to be reviewed further on a regular basis.

As I have already said, no explanation has been given of how the failure to serve the original notice of decision (as intended on 4 December 2007) came to light. The fact that the error had been made was known by 6 March 2008. The judge found that there was no justification for detention beyond that date: see paragraphs 23 and 24 of the judgment. The judge made that assessment after perusal of “case record sheets” kept by the Appellant, which we have not seen. In the circumstances, I can see no basis for interfering with the judge’s decision on the facts in respect of the period from 6 March until the Respondent’s release on 18 March 2008.

On the analysis above, it seems to me that the original decision to detain made on 10 January 2008 was not unlawful and only came into question shortly after the 21 February 2008 review at about the time when detention was first challenged.

Miss Anderson’s ground 3 was, it seems, directed to the possibility that the original decision was unlawful because of the failure to serve the notice of decision. On this basis, she submitted that one must ask what would have happened if that notice had been served (see Lumba) and the answer (she said) was “it was plain that no valid appeal would have been lodged in time”, because “all parties…considered that a valid appeal right had been given”: see paragraph 52 of the skeleton argument. However, while (with respect) I have not found this section of Miss Anderson’s argument at all easy to follow, it does not seem to me that it takes her case any further than the view that I have taken so far on the lawfulness of the detention decision when originally made. I have accepted her submission that by 25 January 2008 the Appellant was entitled to assume that appeal rights had expired. That, however, would not necessarily relieve the Appellant from any failure to take a different decision at a later date.

In all the circumstances, therefore, I consider that the judge was wrong to hold that the first period of detention was unlawful when initiated on 10 January 2008 or at any time until the administrative error in failing to serve a formal notice of decision was appreciated on 6 March 2008. However, as already indicated, I can see no basis on which to interfere with his finding in respect of the period after that date until the Respondent’s release on 18 March 2008.

Accordingly, I would allow the appeal to the extent of declaring that the Respondent was unlawfully detained, so as to give rise to a claim for general (as opposed to nominal) damages, in respect of the period from 6 to 18 March 2008 only, instead of for the whole period from 21 January to 18 March 2008 as found by the judge. The agreement, recited in the order of 15 April 2014, that the Respondent was unlawfully detained in the two periods giving rise to nominal damages only should, in my view, remain undisturbed.

In proposing the resolution of this appeal as I do, it will be apparent that the arguments and citation of authority before us have been very different and far more extensive than were deployed before the judge and, for my part, I can well understand why the judge reached the decision that he did.

I agree.

I also agree.