Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MR JUSTICE BLAIR
Between:
The Queen on the application of NXT | First Claimant |
-and- | |
SBX (a child by her litigation friend, NXT) | Second Claimant |
-and- | |
TFX (a child by his litigation friend, NXT) | Third Claimant |
-and- | |
KFX (a child by his litigation friend, NXT) | Fourth Claimant |
-and- | |
Secretary of State For Home Department | Defendant |
-and- | |
The Children’s Commissioner for England | Intervener |
Ms Stephanie Harrison (instructed by Bhatt Murphy Solicitors) for the First Claimant
Ms Kathryn Cronin (instructed by Bhatt Murphy) for the Second, Third and Fourth Claimant
Mr Richard Kimblin (instructed by The Treasury Solicitor) for the Defendant
Ms Nadine Finch (instructed by Deighton Guedella) for the Intervener – The Children’s Commissioner
Hearing dates: 22, 23 & 24 March 2011
Judgment
Mr Justice Blair:
This is an application for judicial review. A number of issues arise, but in substance, the case arises out of the detention of the first claimant NXT, who is a Jamaican national, following the expiry of her prison sentence for possession Class A drugs with intent to supply. The first claimant’s date for release on licence was 16 October 2009. From that time, she was detained under the powers dealing with “automatic deportation” in s.36 UK Borders Act 2007. Some time later, deportation orders were made in respect of her and her three children, who are the second to fourth claimants. She was granted bail on 15 September 2010, and thereafter has been reunited with her two younger children. In these proceedings, the claimants seek judicial review on the grounds that the mother’s detention and the subsequent deportation orders made in respect of her and the children were unlawful and/or in breach of their Convention rights.
It is necessary to say something about the procedural history. The deportation orders were made on 19 July 2010. Appeals were lodged with the First-tier tribunal in Birmingham on 22 July 2010. These judicial review proceedings were begun on 11 August 2010. An order was made by Hickinbottom J on 11 August 2010 that the defendant, the Secretary of State for the Home Department, lodge an acknowledgment of service and summary grounds of defence by 27 August 2010. That was duly done, and among other things the defendant drew attention to the fact that a substantive hearing had been listed by the First-tier tribunal for 31 August 2010, and though that had been adjourned on the claimant’s application in these proceedings, it was the defendant’s case that the claimants had an alternative remedy, and thus the matter should not proceed in this court.
Regrettably, and through no fault of the parties, the acknowledgment of service was not passed to Collins J when he came to consider permission on the papers on 6 September 2010. He granted permission, noting what he believed to be the failure on the part of the defendant to comply with Hickinbottom J’s order, with the consequence that he had to consider permission without assistance from an acknowledgment of service. (In fact as I have said the defendant had complied.) Collins J went on to observe that while the claimant was clearly a person whose presence in this country was not conducive to the public good, the position of the children had to be considered, and the scope of s.55 Borders, Citizenship and Immigration Act 2009 needed to be determined. He was “far from persuaded that the detention of the claimant was necessarily wrong”, but the question should be dealt with. By that time, the Children’s Commissioner of England had sought permission to file evidence and make oral representations as an intervener. Collins J thought that the Commissioner may be able to provide helpful submissions and that it would be for the judge hearing the claim to decide whether to allow oral submissions. (I did allow such submissions, and they have been helpful.)
There were developments close to the hearing as follows. In her skeleton argument lodged on 17 March 2011, and subsequently by letter, the defendant stated that she wished to reconsider the deportation orders in respect of both the mother and child claimants. The reasons for doing so arose from the change in factual circumstances (including the fact that the first claimant is now pregnant) and the law, the latter being a reference to the decision of the Supreme Court in ZH (Tanzania) v Secretary for the Home Department [2011] 2 WLR 148, a decision handed down on 1 February 2011. This was not acceptable to the claimants, who considered that the defendant should withdraw the decision to deport, and admit liability for the unlawful detention of the first claimant.
Meanwhile, the appeals in respect of the deportation orders, and associated claims, including the first claimant’s asylum claim (which was refused at the same time as the deportation order) have not been heard. I am told that a directions hearing has been fixed for 18 April 2011. At this point, I would note that the claimants are represented by different solicitors in the appeal proceedings. I was told that this was because their solicitors in these proceedings have no contract with the Legal Services Commission for immigration or asylum work. The consequence is that the claimants are represented by different lawyers in different proceedings both concerned with challenges to the deportation orders, in the one case on judicial review grounds, and in the other, substantive appeals on the merits. At this point, it is sufficient to say that the defendant maintains her submission first advanced in her Acknowledgment of Service that, so far as these judicial review proceedings are concerned with challenges to the deportation orders, the claimants have an alternative remedy, and their judicial review claim in that respect should not be entertained.
Finally, I should note that the decision of the Supreme Court in Walumba Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12 was handed down on the second day of the hearing. It is now the leading authority on whether, and if so in what circumstances, breaches of public law are capable of rendering unlawful the detention of foreign national prisoners pending their deportation. Counsel agreed that the issues in that case are mainly different from those that arise in the present case, but I gave them an opportunity to add to their submissions in writing after the conclusion of the hearing (further submissions were sent).
The facts
The evidence is in the form of statements from the first claimant and her daughter the second claimant, a statement from the Children’s Society, a statement from Bail for Immigration Detainees, the factual record as contained in various bundles including the agreed bundles, and various chronologies including those in the pleadings and skeleton arguments. There was clearly a mass of material as regards this case generated within the UK Border Agency alone, and the documentation for the hearing could have been voluminous, but it has been condensed into an exemplary core bundle by the claimants’ solicitors.
The facts are nevertheless not easy to summarise, and a considerable number of points of detail have been raised. The first claimant was born in 1978, and is a Jamaican national. She came to the United Kingdom in 2000 having been granted leave to enter for one month as a visitor. She was detained on 12 December 2001 having overstayed and arrested after attempting to apply for a British passport using a stolen blank birth certificate. She was removed to Jamaica on 12 December 2001. It seems that the third claimant, her son TFX, born in Jamaica on 14 January 1998, came to the UK in 2001.On 20 April 2002, the first claimant attempted to enter the United Kingdom using another person’s passport, and was granted temporary admission, from which she absconded on 26 April 2002. It appears that the second claimant, SBX, her daughter born in Jamaica on 15 January 1995, came to the UK that year, but according to the defendant, there is no evidence of lawful entry. According to the skeleton argument filed on their behalf, SBX and TFX are half siblings. The fourth claimant, KFX, is the first claimant’s son, and the only child who was born in the UK (on 18 February 2003).
On 1 March 2005, the first claimant was convicted of three counts of shop lifting, and fined. On 5 December 2006, she was convicted of three further counts of shop lifting, and given a 12 month Community Order with a requirement to complete 100 hours unpaid work. She failed to attend induction sessions for this. Breach proceedings were instigated in the magistrate’s court, and a warrant issued for her arrest.
On 17 July 2007, the first claimant was arrested in connection with much more serious charges of drugs dealing, and remanded in custody. On 14 September 2007 (following a guilty plea) she was convicted of two counts of possessing Class A drugs with intent to supply.
From this point in time, the family was separated. The second claimant went to live with her father in Cardiff. The third claimant went to live with his paternal grandfather in Cambridge. The fourth claimant went to live with a close friend of his mother’s in London.
On 2 June 2008, the first claimant was convicted (again following a guilty plea) of two further counts of possessing Class A drugs with intent to supply. It seems from the sentencing remarks that in all there were two sets of offences, one committed in December 2006 (the first conviction), and one in July 2007 for which she had been arrested. Both came on for sentence in Cambridge Crown Court on 8 August 2008. At that point in time, the first claimant was aged 29.
In the usual way, there was a Pre-Sentence Report (for what it is worth the defendant points out that the Probation Officer was a trainee). It appears from the report that the offences involved crack cocaine and heroin. The risk to the public of repeat offending was assessed as medium, though it was noted that a period on remand appeared to have had a significant impact on the first claimant. A risk to her children was noted due to her “lack of vigilance… at the time of the second offence”. It was noted that the local children’s team was in contact with the family. A recommendation was made for a suspended sentence.
That recommendation was not accepted by the judge, and on 8 August 2008, the first claimant was sentenced to four and a half years imprisonment, a substantial sentence on a plea. The judge said that for financial reasons the first claimant took over as a base for distribution of both crack and heroin in Cambridge. Normally, even warehousing the drugs, the judge said, would merit very substantial prison sentences indeed, but having regard to her personal circumstances, and her lack of serious previous convictions, and the difficult situation in which she found herself, he had discounted the sentences quite considerably. It is fair to say his remarks indicate that, in the circumstances, the judge regarded the first claimant relatively favourably.
On 2 September 2008, she wrote to the UK Border Agency (UKBA) to the effect that she should be allowed to stay in the UK because she did not want to take her children back to Jamaica, where there was no future for them. On 13 October 2008 however, the UKBA wrote to her informing her of her liability to automatic deportation in accordance with s.32 (5) UK Borders Act 2007 on account of the seriousness of her convictions.
On 21 October 2008, the Refugee Legal Centre claimed asylum on behalf of the first claimant.
Over the next month or so, the UKBA sought information as to the identities of, and whereabouts of, the first claimant’s children. At or about that point in time, the second claimant’s father was deported to Jamaica for drug dealing, and the question arose as to her status in that context. The claimants maintain that this put the defendant on notice of significant issues as regards the children. More details were provided by the first claimant at about that time.
On 20 February 2009, the disclosed documents show the Office of the Children’s Champion at UKBA raising the question of Article 8 issues for the second and third claimants. The Children’s Champion is a senior member of staff who is responsible to the Chief Executive of the UKBA for promoting the duty to safeguard and promote the welfare of children throughout the UKBA, for offering advice and support to UKBA staff and issues related to children, and identifying and escalating areas of concern (see the definition in the November 2009 Statutory Guidance).
On 10 April 2009, the prison where the first claimant was serving her sentence assessed her risk of reconviction for other offending, and re-imprisonment, as low. Her progress in prison (on the basis of the certificates she received and reports from staff) was satisfactory. On 2 September 2009, the report prepared by the prison in advance of the first claimant’s release on licence indicates that, although she posed a risk to her own children through exposure to the negative effects of the illegal drug trade and leaving them alone, the risk she posed to the public was low. These documents were not UKBA documents, and were obtained by the claimants from prison records.
By now, the time when the first claimant was to be released on licence was approaching. On 7 October 2009, there is an email exchange between UKBA and Social Services in Cardiff. UKBA want to know whether the second claimant acknowledged the first claimant as her mother, and whether she wanted to return to her on her mother’s release from prison.
On 9 October 2009, Refugee and Migrant Justice (a charity which at that time provided legal help to asylum seekers among others and which was assisting the first claimant) sent UKBA the pre-sentence report. (RMJ went into administration in June 2010.)
The documentary record shows a minute of the decision to detain the first claimant, and this was on 13 October 2009. The proposal by the case worker was as follows: “In view of the seriousness of [NXT’s] offences, she is liable to Automatic Deportation. She is known to have connections to other criminals in the drugs world and her release at this stage would lead to some risk of absconding. Her children have been here for some years, but their family life has already been disrupted by their mother’s imprisonment. There is no evidence that they are experiencing undue hardship or are otherwise at risk. It is therefore proposed to detain [NXT] while her asylum matters are considered with a view to deporting her with her family without further delay”.
A letter dated 13 October 2009 addressed to the first claimant at HMP Morton Hall is to the effect that the Secretary of State thinks that s.32 (5) UK Borders Act 2007 (automatic deportation) applies, and that detention had been decided upon because she was likely to abscond if given temporary admission or release, to effect her removal from the UK, and because there was a risk of re-offending. According to the letter, “it is not our intention to separate your family longer than is necessary while your deportation matters are considered in detail and once a final decision is made arrangements will be made to reunite you with your family”.
I was told by the first claimant’s counsel on instructions that her client did not receive this letter. UKBA is not in a position to demonstrate that it was in fact sent. In submitting that this was only an unsent draft, reliance is placed upon the fact that the case notes suggest that the authority to detain was given on 15 October 2009.
According to the Case Record Sheet such authority is as follows: “This case has been considered in line with the presumption in favour of release however release is not considered appropriate. [NXT] has been convicted of a very serious offence involving the supply of Class A drugs and would present a risk of re-offending and risk of public harm if released. She has a history of absconding and she has been served with a notice of liability to deportation and is fully aware of our intention to deport her. This indicates that she would present an unacceptably high risk of absconding if released. An asylum decision is being considered and a decision will be made shortly. Detention is therefore authorised for a period of 28 days.”
16 October 2009 was the date of the first claimant’s release on licence, and as her first statement explains, she was then transferred to immigration detention. Internal UKBA notes from about this time show that it was appreciated that this was not going to be an easy case, since the first claimant had three children in the UK all at different addresses and who had been in this country for a number of years.
A case note of 13 October 2009 refers to the first claimant’s connections to convicted criminals one of whom had already been deported to Jamaica and another who is the subject of a deportation order. Given her offending history, the case worker was of the view that she would present an extremely high risk of absconding if released. The same case worker records that on 15 October 2009, he spoke to the Office of Children’s Champion who were aware of the main facts of the case. He records that they had no objection in principle to the removal of the entire family following the refusal of the asylum and human rights claims, with deportation orders served on the children.
To put the factual account into context, I will set out at this point the core submissions made by the parties orally. The defendant places reliance on this evidence, coming as it does from the Office of Children’s Champion, and says that appropriate enquiries had been and were being made. The claimants say that at the time of the detention decision, the UKBA had not obtained critical material about the interests of the children. It was not acceptable, it is submitted, to consider detaining on the basis that all children departed with the first claimant, where the family was only to be reunited at the point of departure. No Secretary of State, having regard to the interests of the children, could properly conclude that to meet in the context of a forced removal could amount to a proper plan for removal. The decision was, it is submitted, flawed by the absence of necessary material, and failure to have proper regard to the best interests of the children.
In that regard, there is evidence of the third claimant being placed in police protection (temporary care) following an incident when he was left alone on 22 October 2009.
On 27 October 2009, the case worker again sought advice from the Office of Children’s Champion. He set out the history, including the fact that the father of the third and fourth claimants had been deported to Jamaica. He mentioned that the first claimant had expressed a wish to reunite with her children. He raised the question of care of the children if they were deported with her to Jamaica.
On 29 October 2009, the Officer of the Children’s Champion replied to the effect that they would want to deport the first claimant, and remove her children with her. The children had no right to remain in the UK, their mother wanted to be with them, and there was a need to keep the family together. She anticipated “you may encounter some difficulties, such as the children may claim asylum. But if your goal is to remove the entire family together then I do not see any reason why that cannot be achieved with careful planning”.
Ms Kathryn Cronin, counsel for the second to fourth claimants, criticises these exchanges, on the basis that issues as regards the fitness of the first claimant to look after the children do not appear to be mentioned in the information sent by the case worker. I do not however think she suggested that there was deliberate misrepresentation. Her point was that the view of the Children’s Champion may have been expressed on incomplete information. Mr Richard Kimblin, counsel for the defendant, responds that this is not so, and points out that it is no part of the case put on behalf of either the claimants or defendant that the first claimant is unfit to look after her children, and this he says must be the starting point of consideration of this aspect of the matter.
Nevertheless, there is a case record of 27 October 2009 from a senior case worker which does raise concerns about suitability of the first claimant to be a fit guardian to her three children. These concerns had to do with the nature of her offending, the fact that the father of at least two of the children was also involved with drugs and had since been deported, and that the fathers played no roles in the children’s lives. This, it was said, raised the question of the care her children would receive if deported to Jamaica with the first claimant. The senior case worker says that although the Office of the Children’s Champion had confirmed no objection in principle to the removal of the entire family, “in the light of the UK Border Agency’s statutory duty to be pro-active with regard to the safety of the children, I believe that we should pursue a more robust response to these concerns … before we proceed any further with pursuing deportation against the children”.
There followed detention reviews approximately monthly, of which the first was on 6 November 2009. The review set out the history, and said that the evidence indicated that the first claimant would pose a high risk of re-offending if released. She would present an extremely high risk of absconding. It was proposed to detain her while her asylum matters were considered with a view with deporting her with her family without further delay. Authority to detain was given at a senior level, as required, the authority noting concerns about the first claimant’s suitability to be a fit guardian to her three children. The asylum/deportation decision was to be served “as a matter of urgency”.
There was a further review shortly afterwards on 13 November 2009, which noted that an adverse decision on either asylum or deportation would attract an in-country appeal, but that removal could be effected within a reasonable time scale, subject to the outcome of an appeal. In the senior officer’s authority to maintain detention, reference is made to the children, and that consideration had to be given to how they could be removed with the first claimant before the next review. The claimants say that there was no attempt, however, properly to address the rights of the children.
In the 7 January 2010 detention review, reference is made to the first claimant’s history of absconding, but it is stated that removal is not viewed as imminent and that the continued detention of the first claimant could result in the long term separation of her and her three children: the authority notes, “Please continue to monitor this case closely and in line with our duty to safeguard and promote the welfare of the children under section 55 of the Borders, Citizenship and Immigration Act 2009.” An earlier suggestion to consider release on contact management (which involves a high degree of monitoring of the whereabouts of the person concerned) was not pursued.
Around this time also, Social Services in Cardiff (where the second claimant was living) indicated that a parenting assessment would be advisable prior to reuniting the first claimant with any of her children.
On 5 January 2010, UKBA had sent a form requesting Offender Management Information on a Foreign National Prisoner (i.e. the first claimant) from the National Offender Management Service (which is part of the Probation Service). This was provided on 13 January 2010. It describes the likelihood of reconviction as low, although as is pointed out on behalf of the defendant that assessment is a generic estimate for an offender with a given history, and does not define the probability that a named offender will be reconvicted. It makes it clear that she was a potential risk to children because of working unsocial hours and if she were to re-involve with individuals that deal in Class A drugs. In the box asking, “from what you know about this offender have there been or are there currently any concerns in relation to escape/abscond”, the answer is “no”.
On 19 January 2010, a note from a case worker refers to “an enormous amount of complexity surrounding this case particularly in relation to the subject’s children which as a consequence is likely to result in many months of dialogue before such time that removal becomes remotely viable”. The case worker adds that “the lady’s identity has been confirmed as that of [NXT]”. The fact that this had apparently been an issue is a further indication of the difficulties faced when dealing with the case.
The next detention review was on 3 February 2010. The case summary refers to the completed OASys risk assessment. It refers to the first claimant’s failure to attend induction sessions in connection with community sentence, and the 2007 breach proceedings, and consequent warrant for her arrest. It is recorded that (as mentioned above) Cardiff Social Services had asked to be notified of any plans to release the first claimant so that they could assess her ability properly to care for her daughter. It refers to further requests made to Croydon and Cambridgeshire Children’s Services. The core bundle contains some of the material relating to these enquiries including a request to Cambridgeshire on 3 February 2010 to arrange for a parenting assessment to be completed. The evidence, it is said, indicated a high risk of reoffending, and in view of the most recent convictions, a high level of public harm. She would also present an unacceptably high risk of absconding. Authority to maintain detention was given at an appropriately senior level on 4 February 2010.
Again, to put the factual account into context, the defendant submits that the documents show that all appropriate steps were being taken. The claimants submit that by this time, the need to consider release in the light of the s.55 duty had been recognised, but not pursued because of concerns about the first claimant’s parenting ability. They accept that release at this point would not mean reuniting the first claimant with her children, but submit that the process could have started. It is also said that the factual assertions made on 3 February 2010 were wrong, since the OASys report of 13 January 2010 had in fact indicated a low level of harm so far as the public was concerned, and a low risk of escape/abscond, and that this was a mistake which continued in subsequent assessments.
On 15 February 2010, the first claimant made the first of a number of applications for bail, which was refused by the Immigration Judge on 19 February 2010. The judge held that, “The presence of her children has not persuaded her in the past to abide by the laws of this country. In the circumstances I consider that her continued detention is reasonable and proportionate to the risk of absconding”.
The next review of the first claimant’s detention was carried out on 2 March 2010. It refers to urgent ongoing enquiries with Children’s Services regarding the suitability of a parent, and whether she should be reunited with her children either prior to, or in order to effect deportation. As regards the duty to the children, it refers to the fact that Cardiff Services had expressed concern regarding the nature of the offences committed by the first claimant, and advised that a parenting assessment would be advisable prior to uniting her with any of her children. In giving authority to maintain detention, the SEO asks that “we ensure that the parenting assessment is completed by the next review and that we are in a position to make a decision on [NXT] and her children in regard to deportation”.
Bail was again applied for. This time, the application was supported by a letter from Children’s Society supporting bail to provide her children with the best possible chances of re-establishing and developing their relationship in the community, with the appropriate support and assessment input from Social Services.
Bail was refused again by the Immigration Judge on 25 March 2010, and authority to maintain detention given on 1 April 2010. The SEO notes that she considered that everything possible was being done to get reports from Social Services, but that a deportation order and asylum decision could not be served until “we fully establish the situation with the children”. Reference at this point is made to the possibility of removing the first claimant without her children.
There were (as appears from the above account) three different Children’s Services involved with the three children. On 31 March 2010 Lewisham responded to the enquiry to the effect that the fourth claimant’s mother was not known to them, and that it was unable to comment on her parenting capacity. It later made it clear that it could not conduct a parenting assessment on her while she was detained. Cardiff made the same point as regards the second claimant on 14 April 2010.
The next review took place on 29 April 2010, and it states that enquiries are now close to being referred to the Office of the Children’s Champion. In giving authority to detain, the senior officer said that “in the not too distant future we may have to consider release of [NXT] as part of our statutory obligation under children’s duties”.
In fact, however release did not happen. Bail was refused again by the Immigration Judge on 30 April 2010. However, the case record sheet notes that information was received to the effect that the first claimant was very close to being granted bail, and that the need to take a decision was even more urgent than before, as indeed it clearly was.
Around about that time, a letter was received from Cambridgeshire Social Services to the effect that the third claimant had very little contact from the first claimant, but that she had recently started phoning him, and had asked him to write a letter saying that he wanted to stay with her in England. In fact, the evidence is that none of the three children had extensive contact with the first claimant either during her prison sentence, or her time in detention, though the position seems to have improved towards the end.
The detention review of 26 May 2010 noted that the case had now been referred to the Office of the Children’s Champion for advice. Authority to maintain detention was given on the basis of a high risk of harm to the public and a high likelihood of absconding and reoffending. The review noted that the father of two of the first claimant’s children had been deported to Jamaica following conviction for drug related offences, and that the first claimant had had a previous association with a man who had also been convicted of drug related offences and had recently been deported. It was considered from all the material that the risk of reoffending and potential risk of harm to the public was high. The refusal of the most recent bail application was noted.
On 28 May 2010 a response from the Office of Children’s Champion was received. It is right to say however that it appears from the text of the response that the Office did not have much information. Nevertheless, on the basis of the enquiry, “I would suggest we need to release her and let the Children’s Services assess her parenting with a view to reunite all the children with her in order to remove them as a family from the UK”. In fact, by 27 May 2010, the case record sheet indicates that it had not been possible to obtain a parenting assessment.
It is right to note that at this time the first claimant herself had asked to be released and proposed that she could live at her pastor’s address with her children (this proposal did not find favour with the Immigration Judge on the most recent bail application because of lack of information).
The detention review of 18 June 2010 refers to that suggestion, and notes that a referral for release contact management had been drafted and submitted to the relevant manager for approval. However authority to maintain detention was given, reference being made to the first claimant’s medium risk of harm to the public, but high likelihood of absconding and re-offending.
By this time, there were wider concerns surfacing as to the length of the first claimant’s detention. On 30 June 2010, Bail for Immigration Detainees (BID) wrote requesting that she be released from detention on temporary admission without further delay as it was evident that she could not be removed imminently, and there were issues pertaining to the children which were of concern. It pointed out that were she to receive a deportation order she would have the right of appeal and there was no prospect of removing her in the foreseeable future. It referred to her children being separated from each other, though it stated that they spoke to their mother every week. It said that she presented a low risk of absconding, since her previous absconding was due to her ignorance of the legal remedies available to her. It referred to a chance she had to live with her pastor in a six bedroom house in Northampton with her three children.
On 2 July 2010, authorisation to split the family was given at director level within UKBA, together with support for the decision not to release the first claimant. That decision was reflected in a letter to BID of 5 July 2010 which sets out the defendant’s case at some length.
On 21 June 2010 a case conference took place within UKBA and the decision was taken to serve a notice of deportation on the first claimant and her three children.
On 14 July 2010 BID wrote again to the effect that a key concern was that the three local authorities responsible for the care of the claimant’s three children had all confirmed that they were unable to assess her parenting ability whilst she remained in detention. A response was sought on that specific point.
Pursuant to the decision that had been reached however, on 19 July 2010 a deportation order was made on the first claimant to the effect that her removal was conducive to the public good, and required under section 32(5) UK Borders Act 2007. A lengthy decision letter accompanied the Deportation Order. The letter considers the asylum claim based on the first claimant’s fear that she would not receive proper protection in Jamaica from a hostile man. It notes her claim that removal would be in breach of Articles 3 and 8 ECHR. It concludes that proper assistance and protection from the authorities was available in Jamaica. It refers to a hostel currently being refurbished to accommodate women and children with no place to stay upon arrival in Jamaica. The letter goes on to accept that the first claimant and her children will have established a private life in the United Kingdom for the purposes of article 8. However it states that there is no reason why the first claimant cannot return as a family unit to Jamaica. It accepts that the three children should accompany her. It says that the children are sufficiently young to return to live in Jamaica, and that free secondary education is available there. Finally, it concludes that removal would be proportionate. The right to appeal is drawn to her attention.
Deportation orders were also made in respect of the second to fourth claimants. It is said that these were not served on them, though there is evidence from Cardiff Social Services that suggests that the second claimant (the eldest child) was in fact served. The letter to her is the one which is in the core bundle, and I am told that each letter is substantially the same. It is said that she is considered to be a dependant of her mother, and it is the intention of UKBA that they should be considered a family unit. It is explained why there is no reason to suggest that it would be unreasonable to expect the second claimant to relocate to Jamaica with her mother, and that it was not considered to be in her best interests to be separated from her mother. She could complete her education in Jamaica, and go on to further or higher education in Jamaica should she wish to. She had spent her youth and formative years in Jamaica, and it was not considered unreasonable to expect her to be able to readjust to life there.
I should at this point note that UKBA later wrote to the solicitors dealing with the second claimant’s appeal (in other words not the solicitors dealing with her present judicial review application) stating that in order to allow the second claimant to focus on her studies, should the appeals be dismissed, UKBA would nevertheless postpone all removal action against the family until she had completed her final GCSE examinations.
I have already noted the legal steps that were taken in July and August 2010 on behalf of the claimants by way of judicial review and appeal. It is to be noted that the evidence shows around this time that there were particular difficulties as regards the third claimant (in other words the middle child) in respect of whom a care plan had been drawn up by Cambridgeshire Social Services. The record shows that on 18 August 2010, authority to maintain detention was given, though it is to be noted that the recommendation was to refer the case to the Chief Executive of UKBA for release under a strict contact management regime. That was overtaken by the grant of bail by Mr Mark Ockleton sitting as a Deputy High Court Judge of the Queen’s Bench Division on 15 September 2010.
After some months, the first claimant’s two younger children (the third and fourth claimants) returned to live with her. The circumstances are described in a report to UKBA by the Children’s Service of Northamptonshire County Council dated 11 March 2011. The first claimant is living with the boys in a house owned by a friend who she met when he was visiting the Seventh Day Adventist Church in Cambridge (which I take to be a reference to the pastor from Northampton). (There appears unfortunately a possibility that the house is due to be repossessed). There are adverse reports from the boys’ schools, but it is also right to say that there is much that is positive as regards the first claimant in the report. In particular, the report concludes that though child welfare issues are apparent in relation to the two boys, there is no evidence of child protection concerns or neglect at this time.
The second claimant continues to live in Cardiff, and her statement in these proceedings makes it clear that is her choice.
The contentions of the parties
Extensive submissions have been filed by the parties in support of their contentions, and submissions have also been filed by the Children’s Commissioner.
In summary, the first claimant challenges the decision to authorise her detention and to continue to detain her from 16 October 2009 (which is it is said is ongoing despite bail being granted), on the basis that:
it was contrary to the statutory provisions in s. 36 of UK Borders Act 2007 as it was without proper authorisation under the statute, for a period which is unreasonable in light of the statutory purpose, and where there was a lack of due diligence in considering the decision to make an deportation order.
by reason of a failure to make any or adequate enquiries in respect of the relevant facts necessary to make an informed and rational decision as to:
the assessment of the risks associated with the release of the first claimant and/or
the welfare considerations and the interests of the children arising from the detention of their mother and the prospects of lawfully deporting them.
The defendant proceeded throughout upon an erroneous factual basis as to these factors and/or failed to obtain relevant information with all due diligence and/or failed to have regard to relevant evidence in particular:
on or after receipt of the NOM’s risk assessment on 6 January 2010 and/or 13 January 2010;
on or after the decision that a parenting assessment of the first claimant was necessary before any decision to deport the children could be made on or about 12 January 2010.
Without any or any proper regard to the legal obligations firstly under s. 21 of the UK Borders Act 2007 and from 2 November 2009 and thereafter under s. 55 of the Borders, Citizenship and Immigration Act 2009 and the guidance issued thereto, as to the obligations to safeguard and promote the welfare of the 2nd - 4th claimants.
Incompatible with Article 8 read alone and/or consistently with Article 3 UNCRC as an arbitrary and/or disproportionate interference with family life.
It was contrary to the defendant’s published policy contained in Chapter 55 EIG and the Criminal Case Work Instructions and which were intended by the defendant to ensure compliance with the legal duties under section 27 of the 2007 Act and/or s 55 of the 2009 Act and/or Article 8 ECHR set out above.
The first claimant seeks a declaration that the detention was unlawful i) for each or any of the reasons set out above (which are addressed separately but interrelate) and/or ii) was incompatible with Article 5 and/or 8 ECHR.
The first claimant in addition seeks an order quashing the continued authorisation for the detention and a declaration that she is entitled to damages for the tort of false imprisonment. But for the legal errors identified above she would not have been detained at all or for the prolonged period that she was.
Alternatively the first claimant seeks damages under s 8(3) Human Rights Act 1998 for any breach of her Convention rights established.
The first claimant also challenges the decision to make the deportation order against her under the “automatic deportation provisions” in s. 32 of the UK Borders Act 2007 as:
procedurally unfair;
made without any or any due regard to the duties under s 55 of the 2009 Act;
incompatible with Convention rights as an arbitrary and/or disproportionate inference with Article 8 family life read alone and/or together with Article 3 UNCRC;
an abuse of process;
Wednesbury unreasonable.
The first claimant seeks a declaration that the said deportation decision was unlawful and a quashing of the decision to make the deportation order.
If the claimants demonstrate that the decision to deport was flawed for the reasons set out above then it is submitted that it would follow that the detention after the 19 July 2010 was unlawful for this further reason.
The second to fourth claimants’ core case is that the defendant’s decisions to deport them as belonging to the first claimant’s family are unlawful. The defendant’s decisions to make deportation orders against the children pursuant to section 3(5)(b) IA 1971 were unlawful for the following reasons:
while the IA 1971 [s5(4)] ‘regards’ children under 18 (for deportation purposes) as belonging to the family of their parent, the Rules provide that the Secretary of State will not normally decide to deport a child living apart from a parent deportee. As the children were not living with the first claimant at the time their deportation decisions were made and as - absent a parenting assessment - it could not reasonably be assumed they should live with the first claimant - the Defendant omitted properly to consider or evaluate whether the children should be deported as belonging to the first claimant’s family.
the deportation decisions were made unlawfully, in breach of the Immigration Rules, irrationally and unreasonably, and were incompatible with Convention rights under Article 8 read alone/and/or together with UNCRC Article 3 and incompatible with/in breach of the statutory and common law duties to have regard to the best interests of the children as a primary consideration and to safeguard and promote the welfare of the children.
the defendant omitted to make adequate inquiries and properly to evaluate evidence necessary and relevant to any deportation decision in respect of the children. In the absence of such necessary information - there is a breach of the public law duty to make a rational and informed decision. (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065B).
The defendant erred in giving no or no proper consideration to the professional evidence which suggested that the children may be at risk in the first claimant’s care. In the light of this evidence the defendant’s decision to make deportation decisions against the first claimant and the children without an assessment of the first claimant’s ‘good enough’ ability to parent and care for her children and/or proper inquiries concerning the children’s circumstances, family ties, welfare and best interests was wholly unreasonable. The defendant’s own officer stated that this information was ‘crucial to a proper consideration of the case’ (UKBA Caseworker to Cardiff Social Services 7 October 2009).
The defendant misdirected herself and others concerning core evidence on the children erroneously asserting that social services departments across the United Kingdom were in agreement that if the first claimant was to be returned to Jamaica ‘then it would be in the best interests of the children to go with her’, when she knew or ought to have known that this statement was incorrect as Cambridgeshire social services which had long term experience with the family expressed their ‘concerns’ from a ‘social care perspective’ if TFX were to be deported with the (UKBA letter 19 August 2010).
On 22 June 2010 the defendant unreasonably and unfairly decided to make a deportation order against the first claimant and deportation decisions against the child claimants on ‘the information available’. In making such decisions the defendant omitted to give any or any proper consideration to the children’s circumstances, their lengthy separation from the first claimant and each other, their alternative and individual ties, extended residence in the UK, their attachments and private and family lives in the UK and their wishes.
The deportation decisions were procedurally unfair. Contrary to the defendant’s own guidance, SBX who is capable of expressing her own views was not informed of the defendant’s intention to deport her; she was not provided with an opportunity to make representations on the proposed deportation or served with a copy of the deportation decision notice. In addition and again contrary the defendant’s guidance the defendant omitted to arrange for an appropriate explanation of the proposed deportation to be given to TFX or KFX and did not invite representations from their carers. The child claimants were denied a fair process and the opportunity to be heard concerning a decision affecting them directly and significantly (see Every Child Matters Change For Children - Statutory Guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children, issued under BCIA 2009 s55, para 1.17b, 2.4, 2.7, 2.18).
The child claimants also seek to challenge the lawfulness of the decisions to detain and maintain the first claimant in detention. The detention decisions they submit significantly limited the children’s opportunity for direct contact with and the possibility of a resumption or the rebuilding of family life with their mother and thus breached their rights to family life under Article 8 ECHR. Further the detention decision was made and maintained without any or any due regard to the legal obligations under s 21 UK Borders Act 2007 and from 2 November 2009 under s 55 Borders, Citizens and Immigration Act 2009 and the guidance issued thereto, as to the obligations to have regard to the children’s best interests as a primary consideration and to safeguard and promote their welfare.
Further it is submitted that the detention decision prevented an appropriate assessment of the first claimant’s parenting to the long term detriment of the child claimants. In the light of the evidence showing broad professional concerns about the first claimant’s parenting, an assessment of her parenting was required. In circumstances where her parenting could only be tested in the community and with support from social services and the children’s present carers, it was unreasonable, and it was an unacceptable risk to vulnerable children, a breach of Article 8, of UNCRC Art 3 and contrary to the defendant’s safeguarding and promoting welfare obligations to maintain the first claimant in detention and thus prevent such assessment being undertaken prior to their planned joint deportation. As a direct consequence of the detention decision a necessary and appropriate parenting assessment of the first claimant was not undertaken. An expert report which has been obtained for the case concludes that such parenting assessment ‘is not an optional extra it is an essential core requirement of any duty to take account of the best interests of children’.
In the light of the evidence cited above, it is submitted that the decision to split the family for detention and deportation and to plan for the family to be reunited at or on their flight from the UK was wholly contrary to the children’s welfare and their best interests – and manifestly was made without consideration of the same.
In addition to the remedies sought by the first claimant, the child claimants seek:
Orders quashing the decisions dated 19 July 2010 to make a deportation order for each child Claimant.
A declaration that the defendant has given no or no proper consideration to safeguarding and promoting the child claimant’s welfare and to a proper consideration of their best interests as a primary consideration.
A declaration that the decision to detain and maintain the detention of the first claimant breached the child claimants’ rights to family life under article 8 ECHR. - the declaration being (for the children) just satisfaction for such breach
The claimants have obtained a witness statement from Ms Elli Free the legal manager of Bail for Immigration Detainees (BID), which had asked for bail on the first claimant’s behalf in June 2010. She expresses the view that the claimants’ case reflects a more general experience of decision making in this area. BID sees a pattern of significant delays in decision making in respect of detained mothers and primary carers of children, a failure to obtain information required to make decisions about the future of the family whilst the mother is detained, consequent prolonged detention of mothers of children who are often in care or private foster arrangements with limited contact between the mother and children, prolonged separation of parents and siblings, and real difficulties in reuniting the children of detained parents in order to deport them together, and detention in fact frustrating rather than assisting the process of removal.
The defendant’s submissions are as follows. The reality is that the three children were dispersed across England and Wales. Their mother was in prison for a significant period. NXT wanted the children to remain with her. However, there were concerns from several quarters as to how to manage putting her back in parental control of those three children, having regard to her history. There was no evidence of actual harm from NXT’s parenting and no care orders, but there were obvious questions which needed to be answered.
The UKBA would not reunite the family without some investigation and advice as to the potential consequences for the children. Absent the children, NXT would have been detained. The only live factor in this case as to her release was the children. However, the obvious and responsible course was to collate the relevant data, and to liaise with the relevant professional agencies in each administrative area, which is what was done.
So, NXT was detained for perfectly proper reasons, namely her criminality and immigration history, and it is not contended otherwise. The law and facts in this case, it is submitted, make detention an entirely unsurprising outcome and any suggestion of illegality would have to be very cogent indeed.
The contemporary documents, it is submitted, present a picture of the agencies working together and directing their minds to the appropriate issues. Senior Officers took an active interest and made sensible decisions at each stage. The rate of progress was diligent and clearly with the welfare of the children in mind and with a view to detention for a period no longer than necessary.
It is absolutely plain, it is submitted, from both the decisions in this case and from the contemporary records that the children were at the heart of the investigations and decision making. This is illustrated by each stage of progress being directed towards and concerned with the children, as reported in the detention reviews.
The challenge to the deportation orders ought properly be determined before the First-tier Tribunal, and the claimants have provided insufficient justification for this to be determined before the Administrative Court.
In any event, for the reasons which are extensively canvassed in the UKBA decisions in this matter, it was entirely appropriate that the first claimant should be detained. She has an appalling immigration history including absconding, the use of false papers and attempts to generate such false papers. Moreover, she has shown herself to have a complete disregard for the laws of the United Kingdom and those factors, when taken together, are powerful reasons for her to be detained pending her deportation.
In her submissions, which have been supportive of those of the claimants, Ms Nadine Finch for the Children’s Commissioner for England draws attention to the need on the part of the defendant Secretary of State for the Home Department to take into account the views of the children involved, and to develop and consistently apply procedures that ensure that the best interests of any children whose parents are detained under immigration powers or liable to deportation are given first consideration, and are recognised as a factor that must rank higher than any other. It is her view that the Secretary of State did not, and continues, not to do so. Children have rights which exist independently from those of their parents, and have to be considered and given appropriate weight irrespective of the immigration status or criminal history of their parents. The Commissioner states that she is concerned that UKBA has confirmed that the appeals against the decisions against the deportation orders are to proceed on 18 April 2011. (In fact, as I have indicated above, this hearing is in the nature of a directions hearing.)
It is the Commissioner’s view that the evidence does not indicate that the defendant had established a coherent and appropriate procedure for ensuring that the best interests of the child claimants would be given first consideration, or that full and proper regard would be given to the need to safeguard and promote their welfare. A process has not been developed, it is submitted, within which proper assessments can be made as to whether it would be in the best interests of a child to be deported with a foreign national parent. In this case, no strategy was developed for obtaining a parenting assessment, for example, by arranging for supervised contact sessions in the immigration removal centre, granting the first claimant temporary release, or employing the services of an independent social worker.
The report of 11 March 2011 from Northamptonshire Children’s Services is inadequate, it is submitted, because it does not deal with the second claimant. No assessment has yet taken place of the first claimant’s ability to care for that child. Therefore, it is concluded, that the defendant still does not have the necessary evidence to make a proper assessment of whether or not, if the second claimant is deported, her welfare will be safeguarded and promoted as required by s.55 Borders, Citizenship and Immigration Act 2009.
The Children’s Commissioner believes that in order to comply with her statutory duty under s.55, the defendant will have to contact the authorities in Jamaica, such as the Child Development Agency, in order to ascertain what services will be available in Jamaica to the claimants if they are to be deported there. In particular, she believes that such enquiries should relate to educational opportunities and social work support.
The Children’s Commissioner criticises that fact that the child claimants were not visited by the UKBA, and that no one has been commissioned to undertake an assessment of their wishes and feelings prior to the decision being taken to deport them.
It is the Commissioner’s view that a declaration should be made that the manner in which the Secretary of State acted in the present case in relation to the child claimants was not in accordance with her duties under s.55 or article 3 UNCRC.
Discussion and conclusions
UN Convention on the Rights of the Child 1989
I begin (as the Children’s Commissioner did in her submissions) with the “most relevant national and international obligation of the United Kingdom” when considering the position of children, namely article 3.1 of the UNCRC: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law (ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 W.L.R. 148 at [23], Lady Hale).
Article 3.2 continues, “States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, 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.”
Article 9(1) deals with the separation of parent and child, providing that, “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”
The position where separation results from imprisonment of a parent and a subsequent deportation decision in respect of parent and children (which arises in this case but did not arise on the facts of ZH) is addressed but only in a limited manner by Article 9(4), which provides: “Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, other member of the family with the essential information concerning the whereabouts of the absent members of the family unless the provision of the information would be detrimental to the wellbeing of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” This is focused on providing information, and does not in itself shed light on the issues that arise in this case.
Finally, Article 12 is also relevant. It provides:
“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be afforded the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
The statutory framework
Relevant statutory provisions in domestic law are as follows. Section 3(5) Immigration Act 1971 is the provision referred to by Collins J in his order on the papers of 6 September 2010. It provides that:
“A person who is not a British citizen is liable to deportation from the United Kingdom if
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.”
It is to be read with s. 32 UK Borders Act 2007 which provides for automatic deportation in terms which (it is not in dispute) apply to the first claimant:
“(1) In this section “foreign criminal” means a person–
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that–
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
Where a person is a “foreign criminal” as defined, s. 32(5) provides that the “Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)”. The exceptions in s. 33 include so far as relevant the situation where removal of the foreign criminal in pursuance of the deportation order would breach (a) a person’s Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention.
Provision made for detention in automatic deportation cases, a distinction being drawn between cases where the Secretary of State considers whether s. 32(5) applies, and thinks that s. 32(5) applies. This is intended to allow for different stages in the decision making process. Section 36 provides that:
A person who has served a period of imprisonment may be detained under the authority of the Secretary of State–
while the Secretary of State considers whether section 32(5) applies, and
where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
Finally, as from 2 November 2009, s. 55 Borders, Citizens and Immigration Act 2009 (the provision at issue in ZH Tanzania) came into force (replacing s. 21 UK Borders Act 2007). It places a duty on the Secretary of State to make arrangements for ensuring that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK. It does so in the following terms:
55 Duty regarding the welfare of children
The Secretary of State must make arrangements for ensuring that—
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
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.
The functions referred to in subsection (1) are—
any function of the Secretary of State in relation to immigration, asylum or nationality;
any function conferred by or by virtue of the Immigration Acts on an immigration officer;
…
A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
…
In this section—
“children” means persons who are under the age of 18;
It is accepted on behalf of the defendant that a correct understanding of s.55 must include ECHR rights under Articles 5 and 8.
Statutory guidance
In November 2009, guidance entitled EVERY CHILD MATTERS: CHANGE FOR CHILDREN was issued under s 55(3) (replacing earlier guidance under s.21 of the 2007 Act). The guidance and its effect is discussed by Wyn Williams J in R (TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin). It common ground that the terms of the guidance properly reflect UKBA’s statutory duty. Both parties have relied on its terms in support of their contentions.
Paragraph 4 states that the statutory duty to safeguard and promote the welfare of children who are in the United Kingdom means:
• Protecting children from maltreatment;
• Preventing impairment of children’s health and development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’);
• Ensuring that children are growing up in circumstances consistent with the provision of safe and effective care;
• Undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.
The guidance goes on to provide that:
“2.1 The UK Border Agency is an executive agency of the Home Office and its primary duties are to maintain a secure border, to detect and prevent border tax fraud, smuggling and immigration crime, and to ensure controlled, fair migration that protects the public and that contributes to economic growth and benefits the country.
2.2. It carries out these duties by applying and enforcing the Immigration Acts and the Immigration Rules, by having regard to policy guidance and instructions issued by the Secretary of State, and by exercising general customs functions as defined in the Borders, Citizenship and Immigration Act 2009. The application and enforcement of the Immigration Acts includes removing from the UK persons who have no legal entitlement to remain in the UK and, in certain circumstances, detaining those individuals pending their removal from the UK. The UK Border Agency also has a role in granting protection to those who need it according to international
conventions and the laws of the UK.
2.3. Within this legislative and policy framework, section 55 of the 2009 Act requires the Secretary of State to make arrangements to ensure that immigration, asylum, nationality and customs functions are exercised having regard to the need to safeguard and promote the welfare of children in the United Kingdom. The functions of the Director of Border Revenue must also be exercised having regard to the need to safeguard and promote the welfare of children in the United Kingdom. The duty does not create any new functions, nor does it over-ride any existing functions, rather it requires them to be carried out in a way that takes into account the need to safeguard and promote the welfare of children.
2.4. The UK Border Agency’s main contributions to safeguarding and promoting the welfare of children include:
• Ensuring good treatment and good interactions with children throughout the immigration and customs process.
• Applying laws and policies that prevent the exploitation of children throughout and following facilitated illegal entry and trafficking.
• Detecting at the border any material linked to child exploitation through pornography.
2.5. Other parts of the UK Border Agency’s contribution include:
• Exercising vigilance when dealing with children with whom staff come into contact and identifying children who may be at risk of harm.
• Making timely and appropriate referrals to agencies that provide ongoing care and support to children.
Paragraph 2.7 states that “children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children’s concerns”.
The guidance also makes it clear that arrangements will necessarily involve planning for the possibility that children and their families may have to be returned to their countries of origin (see paragraph 2.21).
The issues
There are in essence three primary issues raised in these proceedings: the first is as to the lawfulness of the detention of the first claimant, the second is whether if initially lawful her continued detention became unlawful, and the third is as to the lawfulness of the deportation orders.
It is necessary to say something first about how the welfare of children is to be taken account of in the decision making process. In the defendant’s skeleton argument, it is said that s.55 of the 2009 Act “requires the existing functions to be carried out having regard to the safeguarding duty as explained by the Supreme Court in ZH (Tanzania)”. This is uncontroversial. However the submissions continue, “There is nothing at all in ZH to suggest that the automatic deportation provisions of the 2007 Act are to give way to the duty set out in the 2009 Act. In short, the particular provisions of the 2007 Act are to be given effect, subject Article 8 considerations”.
The claimants and the Children’s Commissioner challenge this stance, and on the authority of ZH, I would not accept it as stated. In ZH at [25]-[26], Lady Hale noted that Article 9 of UNCRC drew a distinction “between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death. Nevertheless, even in those decisions, the best interests of the child must be a primary consideration.” Though ZH, unlike the present case, was not itself concerned with the automatic deportation provisions in UK Borders Act 2007, it appears to me to follow from this passage that the best interests of the child or children must be “a primary consideration” in the decision making where these provisions do apply. It is further to be noted that nationality is “of particular importance in assessing the best interests of any child” (ZH at [30]). In the present case, the two older children are Jamaican, and the youngest child, though born in this country, is subject to immigration control. (In ZH, the children had British citizenship.)
Lord Brown and Lord Mance agreed with the judgment of Lady Hale using, as she did, the phrase from article 3.1 of the UNCRC, that the best interests of the child shall be “a primary consideration”. (Lord Hope agreed. It was put slightly differently by Lord Kerr at [46]). Lady Hale said that his does “not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first” [26]. With that in mind, I come to state my conclusions as to the issues in the present case.
The detention of the first claimant
As I have said above, the decision of the Supreme Court in Walumba Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12 was handed down on the second day of the hearing of the present applications. Departing from the reasoning of the Court of Appeal, it decides among other things that breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful. Inevitably the parties’ arguments were formulated without this decision in mind, but the claimants made it clear that this was one of the ways they put their case (developed in further submissions filed after the hearing). That this is a discrete issue appears from the judgment of Blake J in MXL v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) who referred at [16] to “two conceptually different challenges, the first is whether the detention has become unlawful by reason of its prolongation in the light of the relevant circumstances, and the second is whether flawed considerations of fact and policy had played a role in the decision to detain or continue detention”.
As to prolongation, the law stems from the classic judgment of Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704. The principles appear from the following passage in the judgment of Lord Dyson in Walumba Lumba at [22]:
22 It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46 correctly encapsulates the principles as follows:
The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
The deportee may only be detained for a period that is reasonable in all the circumstances;
If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
The Secretary of State should act with reasonable diligence and expedition to effect removal.
The Court’s role is not limited to a Wednesbury review of the Secretary of State’s decision to exercise her power to detain the claimant. In A (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 804, Toulson LJ (with whom Longmore LJ agreed) said at [62]:
“Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked.”
Keene LJ expressed the same view at [72], and this approach was approved in Anam v Secretary of State for the Home Department by Black LJ at [77].
In R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin) Sales J, in a passage approved by Richards LJ, [2010] EWCA Civ 1112 at [67], stated that where the relevant factors include matters of judgment on a topic which is primarily the province of the Secretary of State, the court will be slow to second-guess the Secretary of State’s judgment on that matter. (This was stated in relation to the Secretary of State’s judgment about the availability of removal which depended in a significant way upon an assessment of how a foreign government would react: see The Queen (on the Application of SM) v Secretary of State for the Home Department [2011] EWHC 338 Admin, Beatson J). This appears to me to be correct as a matter of general approach.
The lawfulness of the decision to detain
Against that background I come to consider the claimants’ contentions as to the lawfulness of the decision to detain which, as the factual account set out above explains, was made on 13 October 2009, a few days before the date of the first claimant’s release on licence on 16 October 2009. As I have said, it is challenged on a number of grounds.
First, it is said that the decision letter dated 13 October 2009 addressed to the first claimant at HMP Morton Hall to the effect that the automatic deportation provisions applied to her did not reach her. I have set out the facts in this regard above in paragraphs 20 to 26 above. The first claimant submits that in the absence of written notification the detention is unlawful. Mr Kimblin for the defendant objected (with some reason in my view) that this aspect of the first claimant’s case had assumed more importance than anticipated over the course of oral argument and only achieved any prominence in her reply submissions. He was not in a position to demonstrate that the letter had been sent and received.
As he points out however, it is not in dispute that on 13 October 2008 (i.e. the previous year) UKBA wrote to the first claimant informing her of her liability to automatic deportation on account of the seriousness of her convictions. Whether or not the letter dated 13 October 2009 reached her, as the defendant says, there can be no real doubt that the first claimant knew in October 2009 that a decision had been taken to detain her on this basis, which was why she was not released, but transferred to immigration detention, at the beginning of her license period. The evidence supports such a conclusion (for example from the Case Record Sheet for 15 October 2009). The importance of compliant procedure as regards any decision to detain, whether under immigration law or otherwise, was re-emphasised by the Supreme Court in Walumba Lumba, and I am satisfied that notice was given in the present case.
The defendant also relies on subsequent documentation sent to the first claimant that makes it clear why and under what provisions she was detained. This was expressed (albeit in somewhat differing terms) in the monthly progress reports sent to detainees which the first claimant received following detention. I do not think that subsequent documentation could amount to good notice of a decision to detain taken earlier (though it might be evidence that such notice had in fact been given).
A further point is taken on the first claimant’s behalf based on the fact that the monthly progress reports given to the first claimant (the first is dated 13 November 2009) refer to the date of her detention as being on 18 October 2009. It is submitted that it follows that her detention was unlawful at least for two days from 16 October 2009 until authority was given on 18 October 2009. In fact, as I have explained in the factual summary above, the case notes are to the effect that authority to detain was given on 15 October 2009. I consider that the defendant is correct to submit that the evidence from the Case Record Sheets establishes that authority to detain was given prior to 16 October 2009. Further, the note giving authority deals with notice and service more generally stating that “…she has been served with a notice of liability to deportation and is fully aware of our intention to deport her”. This is contemporaneous at a stage when there was no issue between the parties as to these matters. Taken as a whole, on the facts I accept the defendant’s submissions on these points, and find that the detention was not unlawful on these grounds, and reject the claim based on Article 5 on the same basis.
The first claimant next submits that the decision to detain was vitiated because the basis of the decision was not clearly identified. As I have said above, under s.36 UK Borders Act 2007, a person who has served a period of imprisonment may be detained while the Secretary of State “considers whether” s.32(5) applies, and where the Secretary of State “thinks” that s.32(5) applies, pending the making of the deportation order. Section 32(5) provides that the Secretary of State must make a deportation order in respect of a foreign criminal, subject to the Convention exceptions noted in s.33 that I have set out above.
The first claimant submits that these two sub-sections are distinct provisions, and the decision maker must address his/her mind to which one is met. The detainee is entitled to know under what statutory powers they are being detained, and which target they have to meet. There was a failure, it is submitted, to identify the precise statutory basis for the decision to detain which rendered the detention unlawful. Specificity is necessary for the court to be able to review the legality of the detention under article 5 ECHR. The failure is material also because it would impact on whether the first claimant was detained for a reasonable period of time, whether the defendant was acting with due diligence, and whether the defendant could “think” that she could lawfully deport the first claimant without any proper assessment of the position of the children. The defendant could not “think” that she could lawfully deport the first claimant while there was an outstanding refugee/human rights claim (s.33(4)).
The defendant says that the detention to detain was taken on the basis of what the defendant “thinks”, and that the power was exercised entirely lawfully and the point is misconceived.
My views are as follows. The sub-heads of s.36 differentiate between the position in which deportation is under consideration, and the situation in which (as Mr Kimblin put it) something approaching a decision has been made. The reference to s.35(5), which itself refers to s.33, which provides an exception to the mandatory deportation order where it would breach a person’s Convention rights or the UK’s obligation under the Refugee Convention, recognises that during the determination of those questions the foreign criminal may be detained.
The operation of these provisions was considered by Nicol J in Rashid Hussein v Secretary of State for the Home Department [2009] EWHC 2492 (Admin); [2010] Imm. A.R. 320 in the context of a challenge to the compatibility of s. 36 with Article 5 ECHR (which failed), and the impact of the automatic detention provisions on established Hardial Singh principles. In the course of his judgment, he said at [41]-[42]:
“Also on 17th February 2009 the Claimant was handed a letter addressed to him from the Secretary of State. This said
“As you are aware, the Secretary of State thinks that s.32(5) of the UK Borders Act 2007 (automatic deportation) applies to your case. Consequently you are liable to detention under s.36(1) of the said Act.”
This was wrong. As the Secretary of State subsequently made clear, he had not, as of 17th February 2009, concluded that s.32(5) did apply to the Claimant's case. He had first to give the Claimant the opportunity to make submissions as to why one or more of the exceptions in s.33 applied. However, any error in that regard makes no difference to my conclusion that action with a view to deportation had begun.
For the future, though, it will be important that the letter given to those facing automatic deportation is in harmony with the information that is communicated orally via the Governor. It is also appropriate that the information should be reasonably precise. The phrase "you are liable to detention under s.36(1) of the said Act" is ambiguous as to whether the power in question is that under s.36(1)(a) (which was in fact the power that the Secretary of State relied upon in this case) or s.36(1)(b) (which would only be applicable once the Secretary of State had decided that s.32(5) did apply). This is not just pedantry. A person detained is entitled to know under what power he is being held. As in the present context, the preconditions for different powers may, and usually will, differ. Any challenge to the legality of detention will depend critically on whether the preconditions are satisfied and the detainee therefore needs to know at what the target he needs to aim. Further, if the Secretary of State had indeed decided that s.32(5) applied to the Claimant's case, the Claimant would have had a right to appeal to the AIT – see Nationality Immigration and Asylum Act 2002 s. 82(3A) added by 2007 Act s.35(3).
While I accept that this ground was arguable and grant permission in respect of it, it is not a ground which in the end succeeds.”
In the present case, as in Rashid Hussein, I accept the claimants’ submission that the decision to detain, based on the fact that the Secretary of State “thinks” that automatic deportation applied, was wrong, for the same reason, namely that no determination had been made at that point as to whether s.32 (5) applied to her case. I conclude, as Nicol J did in Rashid Hussein, that this does not vitiate the detention decision. The first monthly progress report given to the first claimant refers to both heads, namely “considers whether” and “thinks”. The same applies to the reports of 11 December 2009, and 8 January 2010 (the latter being misdated). In the report of 5 February 2010, the term “thinks” is used on its own. That remained the position until 2 May 2010. Whilst the use of both phrases in the reports from November to January was wrong for the reasons given by Nicol J, on the facts I accept the defendant’s submission there cannot have been any doubt that this was a case in which the defendant “thought” that s. 32(5) applied. From 2 May 2010, the term “considers whether” was used, a usage that thereafter continued until the last report on 20 August 2010. I agree with the defendant that whether the operative provision was s 36(1)(a) or (b) of the 2007 Act, on the facts of this case, may properly have varied. The change may however have some significance in considering the lawfulness of continued detention, because it implies that the defendant no longer “thought” that s. 32(5) applied, and was “considering” the question. Subject to that, I reject the claim based on this submission, and the Article 5 claim on the same basis.
The final ground on which the decision to detain is challenged by all claimants is that it was fundamentally flawed, and that there were critical failures to comply with the s.55 duty. The first claimant’s submissions were powerfully made by Ms Harrison (and supported by Ms Cronin for the children). It is submitted that it was assumed that a deportation order could be made and promptly effected, but no inquiry and assessment of the children’s interest had in fact been made. The concerns about the first claimant’s past care of the children and ability to parent them in the future meant that no lawful decision to deport them as a family unit could take place without extensive further inquiry. The UKBA could not lawfully and compatibly with “the best interests” principle pursue a plan whereby children who had been separated from their mother and each other for a period in excess of two years would only be reunited at the point of expulsion, which would necessitate detention and shortly thereafter removal. No assessment of the mother’s ability to parent the children could be made whilst she was in detention, and there was no consideration of, and no authorisation for, the splitting of the family for the purposes of detention. So, it is submitted, no lawful deportation order could be made in this case, which is the condition precedent for detention under s.36.
As regards the s.55 duty, it is submitted, the question whether or not to deport the first claimant had been under consideration for a year. UKBA was aware of the separation and dispersal of the children. Issues about parenting emerged from the pre-sentence report. Basic enquiries as to whether the second claimant was the child of the first claimant were made only on 9 October 2009. The endorsement given by the Children’s Champion on 6 October 2009 cannot be relied on, because it is unclear whether she was informed of the issues raised in the pre-sentence report and elsewhere about the risk of harm. There was no recommendation by the Children’s Champion to get a parenting assessment. This did not happen until 3 February 2010, and merely noted that a parenting assessment was needed and referrals had been made. Thereafter, substantive consideration to the best interests of the children was not given, and there were no adequate reasons for rejecting the advice of the Children’s Champion on 28 May 2010 that the first claimant be released then.
The defendant’s response is as follows. There was an early enquiry of Children’s Champion, and thereafter UKBA took and had to take proper steps to make sure that it was properly informed as to the facts. It followed the guidance, and paid full regard to the need to treat the children’s position as centrally important. The serious nature of the first claimant’s offending is emphasised. She was, it is submitted, a habitual offender, having been subject to four sets of convictions for ten offences during her relatively short time in the UK. She failed to complete the community sentence which was imposed on her in respect of the second set of convictions. She had an association with others involved with Class A drugs, including the fathers of two of her children. She had attempted to obtain a passport using a stolen birth certificate and had already been removed from this country back to Jamaica in December 2001. Having been removed, she then returned. There was a proper evidential basis upon which the defendant could conclude that there was a likelihood of her absconding, particularly because on her return to the UK in 2002 (in respect of which she was granted temporary admission), she did in fact abscond. She used deception while in the UK, using her sister’s passport to obtain employment. She herself has used three different aliases. Officers had a substantial body of material available, it is submitted, for the defendant to make the decision which was made, and it is not susceptible of challenge either on public law or Convention grounds.
I express my conclusions as follows. In Walumba Lumba at [66], Lord Dyson said, “In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity”. Ms Finch for the Children’s Commissioner endorses the statement by Lord Kerr at [251] that, “Breach of a public law duty which has the effect of undermining the achievement of the statutory purpose will therefore, in my opinion, render that continued detention invalid”. Mr Kimblin for the defendant relies on the judgment of Lady Hale at [204], where agreeing with Lord Walker, she makes it clear that not every failure in the decision making process will result in unlawfulness.
In the present case, as Collins J observed in his decision of 6 September 2010, the claimant is clearly a person whose presence in this country is not conducive to the public good. As he also observed, the best interests of her children are a primary consideration in the decision making. In my view, a fair reading of the evidence shows that these interests were a primary consideration for the decision makers, but what is very clear is that a judgment as to what was in the children’s best interests, both before, at the time of the first claimant’s release on licence, and thereafter, was a particularly difficult one. There were concerns as to her parenting abilities, partly due to her involvement in the supply of heroin and crack cocaine, and partly because of concerns as to absenting. She had been remanded in custody in July 2007, pending sentence on the drugs charges, and by October 2009 the family had been split up for over two years. The circumstances were such as to give rise to questions as to the parenthood of the children. They were in three different locations, under the auspices of thee different local authorities. The claimants submit that deportation could not be contemplated in circumstances in which the family was reunited at, or immediately prior to, the time of removal. But this does not fully capture the difficulty facing the decision makers in this case. Whilst reuniting at the point of removal could be unacceptable for the reasons given by the claimants, a parenting assessment could not (as the local authorities in due course made clear) be carried out while the family remained apart. At the same time, the obstacle to reuniting the family was the concern as to whether the children would be safe with their mother.
Applying the law as set out in Walumba Lumba, I do not consider that the decision to detain the first claimant was unlawful as made in breach of a rule of public law or was otherwise unlawful. I agree that more could and should have been done earlier, and that this is a valid criticism of the decision making in this case. But the evidence does not in my view show that the UKBA failed to treat the welfare of the children as a primary consideration. The problem lay in the difficulty of the decision, which encompassed the asylum and Article 8 claims the first claimant had made. In my view, the decision was lawful, was within Article 5, and was not disproportionate in its interference with her rights, or with those of her children, under Article 8.
The prolongation claim based on the continued detention of the first claimant
I have set out the relevant legal principles above, and refer to the points made by Nicol J in Rashid Hussein at [44] as to how they apply to the automatic deportation situation (the case did not involve children). He noted that those who are being deported because of their criminal offences are to be expelled because their presence in the UK is not considered to be conducive to the public good, either as a result of the statutory assumption or because of an individualised decision by the Secretary of State. In their cases a rather longer period of detention may be compatible with both the Convention and the common law. This is not because detention (or deportation) is some additional punishment, but because the public interest is rather greater in ensuring that they do not abscond and that any deportation can be implemented. The same is true where a person is to be removed because his presence is not conducive to the public good and there is a risk that he will commit offences if at liberty. When the applicant is in detention, there is an obvious need for the UKBA to respond to the claim expeditiously, and I would add that this need is plainly all the greater when children are involved.
The claimants submit that even if detention was initially properly and lawfully authorised, it was unlawful because detention for nine months pending consideration of a decision to deport is beyond the implied statutory limits in s 36(1) of the 2007 Act. The defendant, it is submitted, failed to act promptly and with reasonable diligence and unreasonably prolonged the detention by:
failing to consider and obtain the relevant information prior to the completion of the criminal sentence and after issues were raised by the first claimant objecting to the deportation first in September 2008 and again in February 2009;
failing to take steps to progress the asylum claim at all for 6 months prior to the completion of the sentence between March and September 2009;
failing to actively pursue enquiries in respect of the welfare and interests of each of the children with social services for almost four months after detention and not until 3 February 2010, despite being on notice that their position required to be investigated since at least the pre- sentence report in July 2008, and as raised by the Children’s Champion in February 2009 well over a year prior to the decision to detain;
delaying between April 2010- July 2010 in making any decision after it was apparent that social services were unable to provide the necessary parenting assessment;
in making the decision to deport on the material available in full knowledge that it was wholly inadequate or properly to comply with legal duties under the Immigration Acts, s 55 of the 2009 Act the HRA and the UNCRC;
taking no steps to properly review continued detention from July – September 2010.
In her submissions for the first claimant, Ms Harrison identified a number of specific points. In the published policy relevant to the decision making in this case, it is stated that “risk of harm to the public will be assessed by NOMS unless there is no Offender Assessment System (OASys) or pre-sentence report available”. This should be received within three days. Where NOMS are unable to produce a risk assessment and the Offender Manager advises that this is the case, case owners “will need to make a judgment on the risk of harm based on the information available to them”. It is submitted that there was no basis to regard the first claimant as posing either a significant risk of absconding or a risk of re-offending. The risks identified in the present case, it is submitted, were in error because they were based on the first claimant’s criminal conduct before she was remanded in custody. There is no evidence that the NOMS assessments provided in January 2010 were properly taken into account and the mistaken view as to the likelihood of absconding and re-offending was repeated without regard to the assessment.
As regards the children, the defendant was aware that they were separated, and that there were important issues regarding their welfare. It is submitted that there was a continuing failure to obtain information about the needs of the children. No proper consideration was given to the obvious benefit of release so that there could be regular physical and other contact between the mother and children. The reunion of the family was especially required to put into effect the stated intention to deport them as a family unit. Notwithstanding concerns raised, the strategy for detention was continued, no consideration being given, it is submitted, to release in order to facilitate the parenting assessment which would be necessary before any deportation decision could be made. The critical error in this case is that the defendant should have appreciated that it could never have been in the best interests of the children to deport them without reuniting them first and obtaining a parenting assessment as to the first claimant’s ability to care for them.
Ms Harrison identified a number of potential points at which she submitted detention ceased to be reasonable. By January, it should have been appreciated that this was a far more complex matter than had initially been assessed. Alternatively, by 14 April 2010 when two of the local authorities indicated that a parenting assessment could not be conducted whilst the first claimant was detained. Alternatively, by 28 May 2010 when the Children’s Champion suggested that the first claimant needed to be released so as to allow Children’s Services to assess her parenting with a view to reuniting all the children with her in order to remove them as a family from the UK. Alternatively, on 22 July 2010 when the claimants appealed against the deportation order so that no steps could be taken to enforce the order and the first claimant had already been detained (and separated from the children) for nine months.
For all these reasons, it is submitted that the s.36 criteria were no longer satisfied. Further, there was a failure to consult with the second claimant, who was old enough to be asked for her views. All these points were adopted on behalf of the second to fourth claimants. In their case, particular emphasis is put upon the need to obtain the views of the children.
The defendant submits that she was fully entitled to continue to detain given the likelihood of absconding, a risk reasonably assessed by the officers concerned. There was no undue delay between the time of detention and the rejection of the asylum and ECHR claims, and consequent deportation orders of 19 July 2010, and the defendant at all times treated the best interests of the children as a primary consideration. This included the obtaining of the advice of the Children’s Champion. Accordingly, the defendant submits, that there is no Hardial Singh claim in this case.
My conclusions on this issue are as follows. I have set out above, and repeat, the nature of the difficulty that arose in this case, in that whilst reuniting at the point of removal could, for the reasons given by the claimants, be unacceptable, a parenting assessment could not (as the local authorities made clear) be carried out while the family remained apart, which was in turn complicated by the concern as to whether the children would be safe with their mother. The fact remains however, that the decision had to be faced. In the events which happened in this case, the first claimant was held in administrative detention for almost precisely a year. It is plain from the material from BID, the Children’s Society, as well as the submissions of the Children’s Commissioner, that such circumstances are not unique, and that the circumstances in which such detention continues has caused considerable concern.
The risk of absconding and re-offending, is a distinct consideration from the welfare of the children, and plainly a most important one. In that regard, I do not consider (as the claimants suggested) that the defendant was under a duty to treat the NOMS assessment of January 2010 as determinative. She was entitled, and probably bound, to take all relevant information into account. Whilst as Blake J makes clear in MXL at [70], the history of the first claimant had to be viewed in the light of her subsequent progress, the fact of previous removal, subsequent absconding and repeated offending were plainly legitimate to take into account in reaching a decision to continue detention. That said, I consider that there is force in the criticism made by the claimants that there is nothing to show clearly that the January 2010 assessment (and the assessment in the pre-sentence report), or the apparently positive effect that custody had had on her, played much of a role in the decision making. It is correct that there were applications for bail, as to which absconding was the primary issue, but as Blake J said in MXL at [73], the fact that bail is refused by the Immigration Judge (on a number of occasions in the present case) is not as a matter of law a complete answer to the contention that detention is unlawful, since the judge assumes that the detention is lawful but may be mitigated in the exercise of discretion by admission to bail. This point was made by Lord Dyson in Walumba Lumba at [118].
As the factual account set out above shows, the Children’s Champion initially took the view that there was no objection in principle to the removal of the entire family. On 29 October 2009 the Children’s Champion expressed the view that the removal of the entire family could “be achieved with careful planning”. I consider that there is force in the submission made by Ms Cronin that issues as regards the fitness of the first claimant to look after the children do not appear to have been mentioned, or at least highlighted, at this stage. I agree with her that the value of the view expressed by the Children’s Champion is dependent on the information provided, and there is, as she put it, a need for candour in that regard.
However the case record of 27 October 2009 from a senior case worker makes it clear that these concerns had fully registered with the defendant. On 19 January 2010, a note from a case worker refers to “an enormous amount of complexity surrounding this case particularly in relation to the subject’s children which as a consequence is likely to result in many months of dialogue before such time that removal becomes remotely viable”. The evidence is that there were efforts to obtain information from the three local authorities involved with the children. These were described as “urgent ongoing enquiries” in March 2010. The SEO asked on 2 March 2010 that a parenting assessment was completed by the next review, so that a decision could be made with regard to deportation. Responses from the local authorities were received by 14 April 2010 to the effect that a parenting assessment was not viable whilst the first claimant was detained. At this point in time, it was recognised that the need to take a decision was even more urgent than before.
Against that background, on 28 May 2010 the Children’s Champion stated, “I would suggest we need to release [the first claimant] and let the Children’s Services assess her parenting with a view to uniting all the children with her in order to remove them as a family from the UK”. At that point in time, it was clear that no parenting assessment would be forthcoming whilst the first claimant remained in detention.
I refer in this context to a witness statement of 10 August 2010 (that is after the deportation orders had been made and while the first claimant was still detained) obtained by the claimants from Ms Rosemary Haines of The Children’s Society. She said that the society strongly endorsed the need for an assessment of the first claimant’s parenting abilities before any decision to deport the children with her was taken. She continued: “This appeared to have been the position that UKBA were themselves taking and were making enquiries with the three authorities. They now appear to have abandoned that approach and The Children’s Society is very concerned at this development. It is clear that all of the three authorities take the view that assessments can only take place in the community. This obviously makes sense. Such assessment could not properly take place in a detention environment and they need to be done over time.” Ms Haines makes it clear that in expressing this view, she had had considerable contact with the local authorities concerned.
In my judgment, on the facts of the present case, the issue of assessment within the community is decisive in determining whether the period of detention was reasonable in all the circumstances. The defendant was required to treat the best interests of the children as a primary consideration. On 28 May 2010, as I have said, the Children’s Champion expressed the view that the first claimant should be released. That view reflected the fact that by then all appropriate enquiries had been made, and these showed that a parenting assessment would be required before the first claimant could be deported with her children, and that a parenting assessment required her release from detention. In my view, there came a time when it became apparent that the defendant would not be able to effect the first claimant’s deportation (with or without the children) within a reasonable period. In Secretary of State for the Home Department v Hassan Abdi [20011] EWCA Civ 242, Sedley LJ pointed out that 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 made on the available evidence ([61]). A similar point was made by Munby LJ in I v Secretary of State for the Home Department [2010] EWCA Civ 727 at [38]. My conclusion on the evidence is as follows. By the end of May 2010, the first claimant had been in detention for over seven months. In my judgment, her continued detention with a view to deportation became unreasonable at this time within the meaning of the case law. It follows that the claimants succeed on this part of their claim.
The challenge to the deportation orders
Extensive submissions were filed by the claimants as to why the deportation decisions made on 19 July 2010 were unlawful. These involve similar matters to those that have been set out at length above, though with focus on the position of the individual children and their needs, including the conditions in Jamaica to which they would be returned.
The defendant submits (as she has from the outset of this case) that the challenge to the deportation orders ought properly be determined before the First-tier Tribunal and that the claimants have provided insufficient justification for this question to be determined before the Administrative Court. This was taken by Mr Kimblin as a preliminary point. (I felt it right not to determine at the outset of the hearing, since the various issues overlapped, and it was difficult to assess the strength of otherwise of the point without knowing more about the case.)
The defendant’s submissions are as follows:
The existence of an alternative remedy may found dismissal of a judicial review at the substantive stage - see Harley Development v Commissioner of Inland Revenue [1996] 1 WLR 727 at 735E for a review of authorities and the clear statement that something akin to abuse of power is necessary to meet the ‘exceptional’ test for judicial review in the face of an alternative statutory appeal mechanism.
There are already proceedings on foot before the First-tier Tribunal. The FTT is in many ways better equipped to address the matters which are raised in the claimants’ grounds. Moreover, the FTT is also equipped to address the legal arguments which arise from s. 55 of the 2009 Act and the CRC. There is authority directly on this point (R (Thomas) v. SSHD [2009] EWHC 1008 (Admin)) which confirms that such a challenge ought to be determined by the FTT and not this court.
R (G & M) v AIT [2005] 1 WLR 1445 deals with the interaction between immigration appeal procedures and judicial review, there in the context of asylum and the adequacy of statutory review on the papers. As in G & M, Parliament has provided a comprehensive system of appeal to the FTT against decisions to deport. There is no exceptional reason to permit judicial review.
So far as Collins J gave permission in this case, his observations about the need to resolve the s.55 issues are now to be understood in the light of: (a) ZH and TS - the s.55 question has received the judicial attention which Collins J referred to; (b) the first claimant is no longer in detention, and; (c) Collins J did not have the alternative remedy point before him because the Acknowledgment of Service and Summary Grounds of Defence (thought no fault of the defendant) had not reached the court file when he came to consider the issue of permission.
The Secretary of State now wishes to consider the cases further following receipt of the parenting assessment report of 11 March 2010 from Northamptonshire County Council. The first claimant’s position, and those of her children, can then be fully canvassed before the Tribunal.
Moreover, ZH (Tanzania) makes it all the more desirable that factual and legal issues be resolved more holistically before the Tribunal than is possible before the Administrative Court.
The claimants (supported by the Children’s Commissioner) oppose these submissions.
They accept that where there is an alternative remedy the general rule is that the High Court will not exercise its discretion to allow proceedings for judicial review to proceed, however, it is now well established that there are exceptions to this general principle where an appeal will not be treated as a true alternative remedy and/or because of “special circumstances” the court will exercise its discretion to entertain the application for judicial review. Exceptions are where the decision is flawed by procedural unfairness and/or abuse of power and judicial review could lie despite the availability of an appeal.
The Court of Appeal in Refugee Legal Centre v SSHD [2004] EWCA Civ 1481, [2005] 1 WLR 2219 rejected the submission of the Secretary of State that the availability of a right of appeal would remedy any unfairness in an initial determination of a claim for asylum refused under a fast track regime. The court emphasised the need for fairness at all stages of the determination process and how procedures that do not provide a fair opportunity for an asylum applicant to properly put his claim from the outset may in fact cause irredeemable harm.
This case raises a radically different challenge to that in Thomas. The contrast with the circumstances in Thomas is clear and it cannot sensibly be suggested as the defendant asserts that the two cases are “almost identical”.
Here the claim is based upon a fundamental failure in breach of statutory duties under the Immigration Acts 1971 and 2007 (and the Immigration Rules) as well as section 55 of the 2009 Act to assess whether it is in the child’s welfare and best interests to deport them to Jamaica with their mother, deport the mother alone and separate them from their mother or for them all to remain in the UK with their mother.
In respect of the latter in particular, it is submitted that the duty under s. 55 of the 2009 Act is i) mandatory; ii) is an important duty; iii) is that of the Secretary of State’s which is non-delegable and iv) can not be devolved to the appellate authority; v) it must be treated as integral to decision making in the same way as the general equality duty operates in the discrimination legislation; vi) it cannot be retrospectively complied with and it requires the decision maker to embark upon a sufficient and proper decision making process from the outset.
Furthermore, in the absence of that parenting assessment, the appellate court itself was in no better position to assess these issues than the defendant who continued to prevent the possibility of this information being obtained before the appeal because of the decision to maintain detention and to continue to oppose bail.
Only the intervention of this court to release the first claimant has allowed for the possibility of that assessment to be undertaken.
In the circumstances of this case, the appeal would not provide a sufficient remedy to oust judicial review, and/or there are special circumstances given that it affects the liberty of the subject and the welfare and interests of vulnerable children in the individual case, and in any event this case appears to be indicative of a pattern of decision making beyond this individual case justifying the intervention of the court to review in the general interests of good administration in an important area effecting fundamental rights.
The second to fourth claimants adopt these submissions, and add that an appeal to the First-tier tribunal is not a true alternative remedy in this case, that there are special circumstances and complexities associated with the residence and disparate ages and interests of the children, that this judicial review is concerned with detention and deportation decisions affecting the family life, the liberty of the children and their futures, and also, as the intervention of the Children’s Commissioner and the BID evidence makes clear, that the case raises wider public issues affecting children and families justifying the intervention of the court to review in the general interests of good administration in an important area affecting fundamental rights. The Court is required to determine the lawfulness of the deportation orders in this case because they are intrinsic to the legality of the detention of the first claimant and in this context the deportation appeal is not an alternative remedy.
My conclusions are as follows. I agree with Ms Cronin that matters such as those in the present case arise in an important area affecting fundamental rights. For that reason, the Secretary of State pursued the appeal to the Supreme Court in ZH (Tanzania) though it had conceded the particular case. She was “understandably concerned about the general principles which the Border Agency and appellate authorities should apply” (see Lady Hale at [13]). Guidance has now been authoritatively given, the decision, as I have noted, being handed down on 1 February 2011, a few weeks before the hearing in this case. The matters concerned in this case pre-date ZH (Tanzania), and I agree with the defendant’s contention that this decision makes it all the more desirable that factual and legal issues be resolved more holistically before the Tribunal than is possible before the Administrative Court. I do not think it would be helpful at this point in time to add views as regards the system in place in the light of ZH (Tanzania)within the UK Border Agency for compliance with s.55.
As I have said above, appeals in respect of the deportation orders were lodged with the First-tier Tribunal on 22 July 2010, the claimants being represented by a different firm of solicitors in the appeal because their solicitors in these proceedings have no contract with the Legal Services Commission for immigration or asylum work. (I was told that the firm concerned became involved on the recommendation of the claimants’ solicitors in these proceedings.) It is common ground that the appeals are merits appeals, not limited to public law review grounds. A hearing for directions has been fixed for 18 April 2011 (in other words imminently). It is correct, as the claimants say, that the focus will not be on process, but the underlying question of whether detention pending appeal was lawful in public law terms has been dealt with by this court—see above. Mr Kimblin submits that there is nothing that this court can cover that the tribunal cannot cover, but the opposite does not apply. I agree with him in that regard, and also that this is not an abuse of power case, which would bring it within the exceptions recognised in the authorities dealing with alternative remedies. On the contrary, it appears to me to be a case in which the interests of the children are best served by consideration by the First-tier Tribunal, which can receive and evaluate evidence, including oral evidence, and approach the case in the round, with an appeal lying to the Upper Tribunal.
Contrary to the claimant’s submissions, I do not consider that this course is precluded by the decision in the Refugee Legal Centre case. That case decided that, provided the fast track system for the adjudication of asylum applications at removal centres was operated in a way that recognised the variety of circumstances in which fairness would require an enlargement of the timetable, the system itself was not inherently unfair so as to be unlawful. In that context, it was held that the fact that an appeal was available was not a sufficient answer, because the applicant was entitled not only to a fair appeal, but to a fair initial hearing and a fair minded decision. Further, if the record of interview was obtained in unacceptably stressful or distressing circumstances, the damage might not be curable on an appeal. In the present case, the issue is a different one. The question is not as to whether an appeal suffices, but as to which tribunal should conduct the exercise reviewing the deportation orders, and more precisely whether this court should do so when there is already an appeal on foot to the First- tier Tribunal which can do so on the merits.
In R(G) v Immigration Appeal Tribunal [2005] 1 WLR 1445, the question arose as to whether the Administrative Court should exercise its powers of judicial review where Parliament had provided an alternative remedy, but one that did not involve an oral hearing. The facts concerned the procedure under s.101 Nationality, Immigration and Asylum Act 2002 which provided for a statutory review by a High Court judge on the ground of error of law. It was objected that the statutory review involved no right to oral hearing and carried no right, in the event of refusal, to appeal to the Court of Appeal. Lord Phillips MR giving the judgment of the court consisting of himself and Sedley and Scott-Baker LJJ, concluded (in agreement with Collins J) that the statutory regime, including statutory review of a refusal of permission to appeal, provided adequate and proportionate protection of the asylum seeker’s rights. It was, accordingly, a proper exercise of the court’s discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review.
In the present case, where the appeal is not limited in the way that the statutory review under consideration in R(G) was limited, the principle applies. The question of detention having been determined by this court, the appeal process provides an adequate and proportionate protection of the claimants’ rights as regards the deportation orders and their asylum and Convention claims. Their proper remedy in that regard is to pursue their challenge by way of the appeal which they have brought. The appeal process is (in my judgment) best suited to give proper consideration to the children’s interests. Subject to hearing submissions, I would propose to stay this part of the application, to avoid the need for fresh proceedings should for any reason further issues arise.
Conclusion
The application succeeds to the extent which I have indicated. I am grateful for the assistance which I have received, and will hear counsel as to the form of the order that should be made to give effect to this decision.