Kpandang, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE MCCOMBE: This is an application for judicial review of the decision of the Secretary of State for the Home Department made on or about 4th May 2004 to process the claimant's application for asylum and for leave to enter or remain in the United Kingdom through the Fast Track procedures operated at the Harmondsworth Centre.

The claimant is a national of Togo. It is not precisely clear from the papers when it was he came to the United Kingdom. However, it is clear that from at least the end of 2002, he lived in Liverpool. Towards the end of that year, he met a young girl called Sarah Jane Roberts, then aged 15 (she was born on 12th October 1987), they formed an attachment and on 2nd February 2004, Ms Roberts gave birth to their son.

On 3rd March 2004, the claimant was arrested on suspicion of being an illegal entrant. He was interviewed on that day by immigration officials. Initially he gave his name as Hussain Aboy Som. Later in the interview, he gave as his name that in which the present application is brought. He said that he had arrived in the United Kingdom in July or August 2003 as a tourist and that he had had a friend from Togo who was then living at the address in Liverpool to which he moved. He informed the officers that his tickets, return tickets, those that he travelled on, and his passport had been lost. He further said that he had been working at a restaurant in Liverpool.

He was recorded further as saying that he would be happy to return to Togo if Ms Roberts and his son could go with him. The claimant says that there was a misunderstanding about this and that his real response had been that if he had no choice but to go back to Togo, Ms Roberts and the baby should go with him.

At this stage, he did not mention the claim for asylum. By 7th April 2004, he was in detention at Dover and on that date, his legal representatives wrote a letter to the Secretary of State claiming asylum. On 6th May the case was referred to an immigration officer at Harmondsworth because it was thought, on behalf of the Secretary of State, that the claim was likely to be capable of being determined quickly and he was accordingly transferred to the Harmondsworth Centre that day. An asylum interview was scheduled for 13th May.

On 12th May, the claimant began the present proceedings and on the following day, Mr Justice Bennett ordered the suspension of the interview and decision-making process pending the decision as to whether or not the permission to apply for judicial review should be granted.

On 17th May, Mr Justice Bennett granted permission and directed a continued suspension of the interview and decision-making process pending the hearing of the application and he directed the claimant's release. The claimant has now been removed from the Fast Track process and his claim for asylum will be dealt with through the usual channels as soon as the suspension of that process is lifted.

Whatever my decision on other matters, I can see no reason why the interview and decision-making process should not now continue and, subject to any observations of counsel, I propose to discharge that part of Mr Justice Bennett's order forthwith.

The only live issue on the present application is as to the lawfulness of the claimant's detention from 30th March to 17th or 18th May when he was released pursuant to Mr Justice Bennett's second order.

Section 4(2) of the Immigration Act 1971 provides as follows:

Paragraph 16(1) of Schedule 2 is in the following terms:

The Secretary of State says that these provisions permitted the claimant's detention. The claimant through Mr Hussain, who appeared on his behalf with Ms Kilroy, initially made the following submissions: first, that the detention was in breach of the Secretary of State's policy on these matters and therefore unlawful; secondly, that the detention was therefore irrational in common law; and thirdly, it was unlawful as being in breach of Article 8 of the European Convention of Human Rights.

It is submitted that if the detention is unlawful, there would be a claim for damages for the common law tort of false imprisonment. For present purposes, however, it was agreed at the hearing that the only decision required for me is whether or not the detention was lawful and therefore, whether or not the claimant was entitled to the declaration of unlawfulness set out in the claim form as amended.

There is no dispute as to the right of the Secretary of State to detain the claimant under the power contained in the Immigration Act 1971 that I have mentioned, subject to the arguments outlined above.

The essence of the claimant's challenge in the end distils to two points: first, was the detention within the Secretary of State's own policy as published; and secondly, if so, was the exercise of the power, in this particular case, a breach of the claimant's rights under Article 8 of the Convention?

The claimant argues that the Secretary of State's policy, as it is developed, is to confine the Fast Track process to "single men", ie, persons without family ties (in a broad sense)in the UK. Further, he submits that the decision to detain infringed his rights under Article 8 by removing him from his girlfriend and son and that such removal was not necessary for or proportionate to the legitimate aims of the speedy determination of asylum claims.

The Secretary of State's policy as publicly announced is to be found in two documents. First, there is the ministerial statement of 18th March 2003 in which the Fast Track pilot was announced. Secondly, there is a published document called "The Fast Track Process Suitability List." The ministerial statement of March 2003 began by referring to the process being applied to asylum seekers with "straightforward claims", the object, as stated to be, to achieve a speedy resolution of such claims.

As for detention the statement addressed this in two particular passages. The first passage is in these terms:

"Those considered to have straightforward claims will be detained pending a quick decision. If unfounded, they will continue to be detained pending removal while any appeal is heard, providing they meet the detention criteria. Detention is considered necessary to ensure claimants are readily available at each stage to facilitate the Fast Track process."

A little higher up, this is said:

That last quotation was a direct quotation from the relevant minister herself. There is an additional note in what appears to be the press release of that statement, which I do not think I need to read.

The Fast Track Process Suitability List, to which I have already referred, sets out a list of countries from which, in the words of the ministerial statement, claims for asylum are presumed to be unfounded. Togo is one such listed country. The list goes on to identify certain unsuitable cases, for example, and I need not recite them all, I will read the first three:

"Unsuitable cases for Oakington and Harmondsworth:

"Pregnant females of 24 weeks and above.

"Disabled applicants, except the most easily manageable."

And there are other categories. The categories of unsuitability do not include persons whose cases are said to engage Article 8 of the Convention or where family ties in general are an issue in their asylum claims.

A later version of this same document, as promulgated in about April 2004, after listing countries whose nationals are to be amenable to the scheme, adds a paragraph which is in the following terms:

A similar list of unsuitable claimants is also set out in the later document and again no category of unsuitability is identified by reference to either Article 8 or the family status of the asylum applicant. Thus far, it is tolerably clear that there was and is no policy to exclude applicants from the Fast Track processes on the basis of their family status. The apparent criteria for admission to the Fast Track was country of origin and any other indications that an asylum claim was amenable to speedy determination.

The evidence filed on behalf of the Secretary of State informs me that Harmondsworth is only able to accommodate men capable of being accommodated alone. There is no suitable accommodation for women or families. This is the evidence of Mr Ian Martin, a deputy director of the Immigration and Nationality Directorate of the Home Office. In paragraph 12 of his statement of 15th July, he says this -- I think I will take the quotation from the beginning of paragraph 11, in the following terms:

Paragraph 12:

Those features of the apparently intended policy have become blurred. First, I have been shown a Home Office document emanating from January of 2004, entitled "Best Practice Screening (Enforcement)". It is subtitled "For disclosure" and has, I was told, become readily available to those advising on immigration matters.

Paragraph 9 of that manual contains the following passage:

"Fast Track cases (Harmondsworth)

On behalf of the claimant, it is urged that this document should be treated as Home Office policy and to indicate that those with dependants, such as, it is alleged, this claimant, are excluded on substantive grounds from the policy. Secondly, the claimant has referred me to the decision of Mr Justice Collins, in the case of R (Refugee Legal Centre) v the Secretary of State [2004] EWHC 684, administration. (I shall interpolate that it is the Refugee Legal Centre that instructs counsel on behalf of the claimant in the present case.)

In the case before Mr Justice Collins, a challenge was brought to the Fast Track procedure on the basis that that procedure was too fast to enable asylum applicants properly to prepare and to state their cases. Mr Justice Collins rejected that challenge. However, at paragraph 2 of his judgment, he said this."

The claimant says that that passage in the learned judge's judgment derived from an exchange in argument between the judge and counsel. For the purposes of comprehending the relevant extract from the transcript of proceedings in that case for the morning of 9th March of this year, it is necessary to state that Mr Fordham of counsel was representing the claimant in those proceedings and Miss Giovannetti of counsel, was appearing for the Secretary of State. Mr Fordham for the applicant was on his feet addressing Mr Justice Collins when the learned judge intervened in the following terms, and I omit certain words at the beginning of the quotation, continuing:

(Just to break in the quotation, that of course is a reference to the decision in R(Mahmood) v the Secretary of State [2001], 1 Weekly Law Reports, page 840.) Continuing:

(The reference to L is the case of R (L) v the Secretary of State [2003], 1 Weekly Law Reports, page 1230.)

Mr Fordham then says:

The judge intervenes:

Then Miss Giovannetti, in an important passage, intervenes to say this:

Mr Justice Collins:

"It has to be single without children, has it?"

Miss Giovannetti:

"Yes".

Mr Justice Collins:

"Well, that answers that point."

From the passage that I have read from Mr Martin's evidence, it appears that counsel's comment, no doubt in good faith on instructions in that case, was only partly accurate. The situation and reality appears to be that those who were taken into Harmondsworth are men who are so taken in without spouse or partner or children. The physical accommodation can only take unaccompanied men. There are no facilities for women or children. In many cases, no doubt, they will in fact be single men in the strict sense who are without children.

I do not think that the statement of counsel in the course of argument before a court can be taken as reformulating the policy of the Secretary of State. It has caused an unfortunate misunderstanding here but the task of the court is to find out, so far as possible, what the Secretary of State's published policy is. For those purposes, I am more inclined to rely and think it is safer to rely upon the ministerial statements in the Fast Track Processes Suitability List as amplified in Mr Martin's evidence. Counsel's statement in the Refugee Legal Centre case was sufficiently accurate for the purposes of the case before Mr Justice Collins and ministers cannot be bound by statements made by counsel in circumstances in which the statement was made in that case. For my purposes, I am satisfied that the detention of this claimant at Harmondsworth did not go contrary to the Secretary of State's policy on these matters.

I would add that the problem was compounded in the present case because the claimant's advisers, quite reasonably, based their original objection to the claimant's transfer to Harmondsworth, based upon counsel's interlocutory observation in the earlier case, because they had been directly involved in those proceedings and could cite chapter and verse. They were at pains to stress in their initial correspondence that the claimant did have a relationship with Ms Roberts and had a child by her. The Home Office's response, initially by letter of 10th May 2004, asserted that the Fast Track process had been established to resolve cases that appeared to be capable of quick decision.

It went on to assert that in any event, the claimant had failed to produce any evidence of subsisting marriage or of any dependants on his asylum claim. This was perhaps unfortunate because it led to protracted debate about the status of the claimant's relationship with Ms Roberts and of the claimant himself as a parent of the child. This gave further fuel to the concept that marital status was material to the Secretary of State's policy as such. Again, however, I do not consider that the contentions between solicitors in correspondence in individual cases can be determinative of what the Secretary of State's policy actually is. That policy has been clearly identified in a ministerial statement, publicly delivered, and has been explained by Mr Martin. It was not infringed, in my view, in this case.

The claimant, however, goes on to argue that his detention pursuant to the policy infringed his rights under Article 8 of the Convention by separating him from Ms Roberts and their child.

As is well known, Article 8 of the Convention provides as follows:

Mr Hussain submitted that for these purposes, it is necessary to concentrate upon the decision to detain and not upon what may or may not be the ultimate decision upon the asylum claim or any decision, if that claim were to fail, to remove the claimant from the United Kingdom.

He submitted correctly that as at the time of detention, the risk of absconding was not identified as a reason for detention and that the Secretary of State cannot demonstrate that detention was therefore required for the legitimate purpose of orderly and fair control of immigration. He submitted that detention was disproportionate as a means of achieving the object of speedy determination of the asylum claim. He referred in this respect to the well known passage in the speech of Lord Steyn in R (Daly) v the Home Secretary [2001] 2 Appeal Cases, page 532. At page 547, itself quoting the speech of Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999], 1 Appeal Cases, page 69 and page 80, the passage reads as follows. Lord Steyn said:

Mr Hussain submitted that the detention in this case did not satisfy that test as applied to Article 8 of the Convention.

I was of course also referred to the decision of the House of Lords in R (Saadi) v Home Secretary [2002], 1 Weekly Law Reports, 3131 or [2002] UKHL, 41. In that case, the Fast Track procedures were tested against the right to liberty under Article 5 of the Convention. No Article 8 question arose.

In the present case, by contrast, there was no argument by the claimant that there was an infringement of Article 5. The argument was that a detention otherwise justifiable under Article 5 is nonetheless a breach of Article 8 and is therefore unlawful. Certain passages from the speech of Lord Slynn of Hadley in the Saadi case, with whom all their lordships agreed, are to my mind, however, instructive. At paragraphs 21 to 24, Lord Slynn said this:

Having considered the particular points arising in that case under Article 5, Lord Slynn continued at paragraph 44 of his speech in the following terms:

When tested against the criteria for judging the proportionality and necessity of any action engaging Article 8 of the Convention, those remarks appear to me to be of equal force. It is to be remembered that when it comes to the ultimate decision as to whether removal would infringe Article 8, the Convention right is again not absolute but qualified as Article 8.2 makes clear.

In such circumstances, I find it impossible so say that a short period of detention for the purposes of the application of the Fast Track processes is necessarily unjustifiable; it must depend upon the facts.

In the present case, it is to be remembered that the claimant had previously failed to comply with his conditions of entry. He failed to leave the country when required to do so. When initially interviewed, he provided a false name and inconsistent answers. He had even been violent and disruptive at the early stages of detention. All these features made it quite reasonable to think that the legitimate objectives identified in paragraphs~24 and following and 47 and following, in the speech of Lord Slynn that I have just read, were likely to be seriously compromised in the absence of a short and reasonable period of detention.

Standing back one has to recall that in every day life, people are separated from their families by lawful detention. For example, a person may be lawfully arrested on suspicion of crime, possibly for lengthy periods in the cases of some suspected crimes. In the end, that person may be released without charge but the detention, engaging potentially Article 8, is clearly proportionate and necessary.

The prompt and speedy determination of asylum claims is equally in the public interest and in the interest of applicants for asylum individually and collectively. Short detention for resolution of such claims will often be proportionate and necessary to achieve resolution of claims thought to be straightforward, even if a question of family relationships calls to be considered.

Therefore, for those principal reasons, I reject the elegant and carefully structured submissions of Mr Hussain.

There was before me a secondary issue as to the physical conditions at Harmondsworth and the quality of legal advice available there. On this subject, witness statements were exchanged on behalf of the parties: first, from a Mr Jerome Phelps, the manager of the London Detainee Support Group for the claimant and by Mr Simon Barnett, Assistant Director of the Immigration and Nationality Directorate of the Home Office for defendant.

Whatever the rights and wrongs of their various contentions, it is, I think, significant that no evidence was forthcoming from the claimant himself to the effect that the conditions were unsatisfactory, in his case, during his very short period of detention at Harmondsworth or that legal advice and assistance was inadequate. The facts indicated quite the contrary: he promptly obtained advice and assistance which procured his release under the order of Mr Justice Bennett. I cannot see therefore that the otherwise lawful detention was compromised by these matters.

Finally, it is submitted that the claimant's ability to produce evidence to the decision-makers, from either Ms Roberts or her mother, might have been compromised by detention. On the evidence available, I cannot be satisfied that such material as was necessary for those questions could not have been obtained either by the claimant's own advisers, who acted quite promptly in his interests, or as the Secretary of State suggests, by relevant local immigration officers in Liverpool seeking out the necessary third parties. I do not see that the evidence before me demonstrates that any deficiency in this regard made the claimant's detention in any way unlawful. In my view therefore, and for all those reasons, this claim must be dismissed.

MS RICHARDS: Can I also invite my Lord, as he indicated earlier in the judgment, to discharge the order made by Mr Justice Bennett on 17th May?

MR JUSTICE MCCOMBE: Yes, I will, subject to what Ms Kilroy may say on the subject.

MS RICHARDS: That is to enable the ordinary asylum procedures to continue.

MR JUSTICE MCCOMBE: Yes. Ms Kilroy, do you have any observations on that last point?

MS KILROY: No, my Lord.

MS RICHARDS: I understand the claimant is in receipt of LSC funding.

MS KILROY: That is correct.

MR JUSTICE MCCOMBE: So you want a publicly funded cost assessment, do you, Ms Kilroy?

MS KILROY: That is right, my Lord. I understand from that, that my friend is not seeking costs against the claimant.

MS RICHARDS: No, there is no practical --

MR JUSTICE MCCOMBE: No. So I will make no order as to costs but I will make an order for publicly funded assessment.

MS KILROY: My Lord, on that issue of no order as to costs, in my submission, this is a case where though it is of course a matter for your Lordship, it may be appropriate to award a proportion of the claimant's costs because the Secretary of State did not make clear what the parameters of his defence were until the very day of the hearing.

As your Lordship will recall, the summary grounds of defence, which were the only pleadings submitted in the case, were not retracted until counsel was on her feet in the hearing and the Secretary of State's evidence, which appeared to contradict that, did not make it clear that that argument had been retracted. In any event, that evidence was not submitted until ten days before the hearing.

My Lord, the claimant's representatives, with the Legal Services Commission's funding, were required to respond to the arguments in the summary grounds of defence and in my submission, the Legal Services Commission should not be required to pay the costs which were incurred in responding to that argument, when it could have been retracted quite considerably earlier.

MR JUSTICE MCCOMBE: Thank you. I need not trouble you Ms Richards. I will make no order as to costs, the reason being that this is a dispute that developed very quickly. Arguments had to be thought of and constructed as best possible under the urgent orders of Mr Justice Bennett, quite understandably made in the circumstances and because the defence was not formulated, the complete precision until the end of the day is perhaps not surprising. Therefore no order as to costs.

MS KILROY: My Lord, I would also ask for leave to appeal against your decision. The reasons for that, my Lord, are first of all in relation to the policy argument. In the light of the confusion surrounding the Secretary of State's policy and, as your Lordship recognised in his judgment, the parameters for that policy were very blurred. Blurred not only by the submissions that were made in court in the case of the RLC v the Secretary of State but also by the best practice guide and the correspondence leading up to this litigation.

My Lord, in the case of Nadarajah, which your Lordship has referred to in the course of argument, the question of whether the policy is clear enough for the Secretary of State to rely on was the crucial consideration and the court found that because it was not clear enough, the Secretary of State could not rely on it in that case. In my submission, there is a reasonable prospect that the Court of Appeal would reach a different conclusion to your Lordship on the question of whether the Secretary of State's policy, as set out in Ian's Martin's statement, was indeed clear enough for the Secretary of State to rely upon in this case.

In relation to Article 8, my Lord, your judgment has essentially, in my respectful submission, expanded the agreement of the Saadi judgment to include not only Oakington but also the Harmondsworth Fast Track process which, as your Lordship will be aware, is a different process to Oakington, a much more compressed process but which also involves a longer period of detention. It is not seven to ten days; it is considerably longer than that from start to finish of the process.

Your Lordship has also, in effect, extended the remit of that case in part 2, Article 8 as well as beyond Article 5 as was planned in the judgment of the House of Lords in that case. In my submission, that is a matter which is of considerable importance. It is, in my submission, a controversial finding and it is something which the Court of Appeal should be given the opportunity to consider.

MR JUSTICE MCCOMBE: Thank you very much. I need not trouble you, Ms Richards.

This is a case of largely academic interest, the only object of the proceedings at the moment is to claim damages. The claimant has been released from detention, his process claim will be processed in the usual way and this seems to be quite an inappropriate vehicle to test whatever interesting points there may be.

Secondly, although ably argued and interestingly argued, in the end it seems to me that both the policy was tolerably clear and the application of the law to the policy was helpfully elucidated by Saadi, which I do not consider was substantially extended by anything I said. If it was, I think it must be for Ms Kilroy, who ably assisted Mr Hussain, to persuade the Court of Appeal otherwise.

Now, the final point, Ms Kilroy, as I indicated to Mr Hussain, I propose to retain these papers and refer them to the DPP. Is there any reason why I should not take that process?

MS KILROY: My Lord, the cases on that list and the position of the claimant and his girlfriend came to the attention of the police on the very first day of his detention. As you will have noticed from the witness statements, the police contacted the claimant's girlfriend's mother to ask her if she knew about the relationship and she replied that she did. Not only were the police aware of this relationship but also the immigration authorities and the Secretary of State and indeed the Treasury Solicitors. My Lord, no action has been taken against the claimant and in my respectful submission, the reason for that may be -- the factors that may be taken into consideration is the solidity of the relationship between the parties.

My Lord, if I could hand up briefly an extract from Archbold which makes clear what the offence is. (Handed).

MR JUSTICE MCCOMBE: Thank you. Yes.

MS KILROY: My Lord, you will see -- it is paragraph 6(3) -- there is a defence to this offence: if a man is under 24, and has reasonable grounds for believing that she is 16 or above. So it is not a strict liability offence in the case --

MR JUSTICE MCCOMBE: Of somebody under 24.

MS KILROY: Of someone under 24, which position the claimant is in.

MR JUSTICE MCCOMBE: I understand that. Thank you very much.

MS KILROY: So in my respectful submission --

MR JUSTICE MCCOMBE: It would be inappropriate.

MS KILROY: It would be inappropriate.

MR JUSTICE MCCOMBE: Thank you for that assistance and I will not that take that course. Thank you for your help on that.

Just let me deal with the permission to appeal form and then I will release you.

MR JUSTICE MCCOMBE: Yes, Ms Kilroy, you wanted to say something else.

MS KILROY: My Lord, I should add that the young man's defence has been repealed as of 1st May this year but it would not --

MR JUSTICE MCCOMBE: From this year. That is right, that is under the new Sexual Offences Act, you are quite right. But it does not affect the decision of this case and I understand that. But thank you for drawing that to my attention. Anything else from your side, Ms Richards?

MS RICHARDS: No, my Lord.

MR JUSTICE MCCOMBE: I would like to just thank all counsel for very careful and helpful arguments. I will rise before the next case is called.

MS KILROY: My Lord, I am sorry to trouble you, I should have mentioned this earlier. Could I ask that given it is the holiday period, I do apologise, but for an extension in the period of lodging a notice of appeal to the --

MR JUSTICE MCCOMBE: The period would be 14 days, would it not?

MS KILROY: Yes, my Lord.

MR JUSTICE MCCOMBE: What practical time do you want?

MS KILROY: Given that there is the holiday period, a period of six weeks.

MR JUSTICE MCCOMBE: No.

MS KILROY: In that case four weeks.

MR JUSTICE MCCOMBE: I will hear what Ms Richards says.

MS RICHARDS: My Lord, I think if this case is to be pursued to appeal, that ought to be resolved sooner rather than later. The Legal Services Commission continue to operate during the holiday, they do not stop and I am sure that there will be counsel available within the next 14 days who could draft the necessary papers. So I would oppose that application.

MS KILROY: My Lord, it will be necessary to obtain Legal Services' funding to issue advice as to the prospects of success and the continuation of the legal funding for this, so that will cut into the 14 day period. So in my submission, it would be appropriate and it is indeed, in my submission, relatively common for extensions of this kind to be made. It is also the holiday period, my Lord, and that does have some impact on the availability of counsel. So in my submission, it would be appropriate to --

MR JUSTICE MCCOMBE: Could I just ask you this: you would not presumably be intending to appeal on any footing my discharge of Mr Justice Bennett's order allowing determination of the claim to proceed, would you? I think those instructing you do not think so.

MS KILROY: No, my Lord.

MR JUSTICE MCCOMBE: I just thought I better bear that in mind. So it is only on the point of principle that you want to go to the Court of Appeal.

MS KILROY: And its impact on the damages.

MR JUSTICE MCCOMBE: My only observation, Ms Kilroy, is you articulated with great clarity the reasons why you argue that I got it wrong; why can you not go back to chambers and put that precisely down on paper?

MS KILROY: My Lord, it is possible to do that. It is really the question of contacting the Legal Services Commission and obtaining legal funding and then issuing the notice of appeal. If it was simply the question of issuing notices of appeal, I would not be making this application.

MR JUSTICE MCCOMBE: I will give you 21 days, Ms Kilroy, and no more. You can apply for further time if there is a real problem.

Thank you all very much. I repeat that it was a very interesting case.