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

J U D G M E N T

MRS JUSTICE ELISABETH LAING: This is an application for judicial review by Abdiel Tekelom Werede ("the claimant"). He challenges his detention by the Secretary of State for a period between 11 September and 20 September 2012. He had in fact been detained earlier than that, but that is the period under challenge.

The claim for judicial review was lodged on 11 September 2012. Permission was refused on the papers on 7 February 2014 by Neil Cameron QC sitting as a Deputy Judge of the High Court. The application was renewed to an oral hearing. The oral hearing took place on 18 June 2014 and at that hearing Clare Moulder sitting as a Deputy Judge of the High Court granted permission to apply for judicial review in respect of ground two of the claimant's grounds; a ground challenging the claimant's detention, on the basis that it was arguable that his detention from 11 September 2012 was unlawful by reference to the defendant's published policy on detention.

The Material Facts.

The claimant is an Eritrean national who fled Eritrea in April 2009 after deserting from military service. He travelled through Sudan to Libya and from there to Malta, where he arrived on 29 March 2011. In Malta he was initially detained for four months in accordance with Maltese policy and then transferred to Hal Far Immigration Centre.

He left Malta in June 2012 and travelled through France to the United Kingdom. On 8 August 2012 he attended the defendant's office in Croydon in order to apply for asylum. He was detained then and continued to be detained until he was released on 20 September 2012.

Following the acceptance of his case by Maltese authorities under the Dublin Regulation the defendant Secretary of State served him with removal directions on 31 August 2012.

On 7 September 2012 the claimant instructed his present solicitors. They were acting in another case called MB and wrote to the defendant questioning the decision to remove the claimant in the light of litigation that was going on in that case. That letter gave the defendant until 4pm on 10 September 2012 to reply.

The defendant in fact replied on 11 September 2012 certifying the claimant's human rights claim. His asylum claim had already been certified on 30 August 2012 on safe third country grounds. I will say more about that letter in a moment.

I should start by referring to the letter that was sent by the claimant's solicitors on 7 September 2012. In that letter the claimant's solicitors told the Secretary of State that they were acting for him and they submitted that his asylum claim should be considered in the United Kingdom and that removal directions should be cancelled pending the decision of the Administrative Court in several judicial review applications concerning returns to Malta. The letter said that in those cases the Administrative Court was currently deciding whether it would be safe to return asylum seekers to Malta or whether it would be a breach of the United Kingdom's obligations under Article 3 of the European Convention on Human Rights to return asylum seekers to Malta. The solicitors went on to say that they were writing a letter in order to provide the Secretary of State with an opportunity to respond to the relevant issues in the hope of avoiding litigation.

The law on the Dublin Regulation is referred to in paragraph 8 on the second page of that letter and the claimant's solicitors referred to litigation in the UK, Strasbourg and Luxembourg in relation to removals to Italy and to Greece. They referred to the position in NS in relation to Greece and they said that the same position pertains now in relation to asylum seekers who are forcibly returned to Malta. They went on to refer to five other cases in which permission to apply for judicial review had been granted in relation to such issues in the cases concerned and they gave Crown Office Reference Numbers for those cases. They said that the Administrative Court had confirmed that those cases would be linked together. It was submitted that the defendant Secretary of State would be aware of those cases and the Secretary of State should not be removing anyone to Malta pending the outcome of that litigation.

The Secretary of State replied to that letter on 11 September 2012 and, under the heading "Article 3 consideration", the letter referred to the fact that Maltese authorities had accepted responsibility for deciding the claimant's asylum claim under the Dublin provisions on 24 August 2012.

The Secretary of State then recited that Malta was a signatory to the Refugee Convention and the European Convention on Human Rights and it was bound by the relevant EU provisions in relation to asylum seekers. Paragraph 6 of the letter recorded the assertion that removal to Malta would be in breach of the claimant's rights under Article 3 of the ECHR. It went on to say:

"It is the UK Border Agency's view that your client's claim is wholly without merit having regard in particular to the clear principles established in the following cases."

There was then a summary of the case law in the Court of Justice of the European Union ("the CJEU") and in the European Court of Human Rights ("the ECtHR") and in domestic cases. The two domestic cases that were referred to were Medhanye and EW v SSHD. Paragraph 10 of the letter reads as follows:

"The approach indicated by the supra-national courts in NS and MSS is entirely consistent with the approach adopted recently with domestic courts in the Medhanye and Elayathamby rulings. The court in those cases rejected on the facts allegations that return to respectively Italy and Malta would be contrary to the requirements of international human rights agreements."

Paragraph 11 of the letter went on to say that:

"Having regard to the legal position set out in the authorities referred to above it was the defendant's position that it is clear that the evidence presented by the claimant does not even arguably approach the level of weight and significance to establish a case that the defendant could not be unaware that systemic deficiencies in the asylum procedure and reception conditions of asylum seekers in the member state amount to substantial grounds for believing that the asylum seeker would face a real risk of Article 3 ill-treatment."

The letter went on to say that the claimant had failed to adduce evidence from the UNHCR or from the European Commission, let alone regular and unanimous reports from non-governmental organisations as referred to by the CJEU in the case of NS. The letter repeated that the Maltese authorities had accepted responsibility for the claimant's claim and at paragraph 17 the letter said:

"In the light of the above and having carefully considered your client's case it is not accepted that your client's proposed removal to Malta will result in interference with his rights under articles 3 or 8 of the ECHR."

Paragraph 18 reads as follows:

"You further request that your client's case is stayed pending the outcome of the appeal before the Court of Appeal. The UK Border Agency continues to pursue third country removals to Malta under the provisions of the Dublin Regulations. In these circumstances your client's removal is considered appropriate."

The defendant has a statutory power to detain pending removal. The defendant's published policy governing the exercise of that power is set out in the Enforcement Instructions and Guidance. Paragraph 55.3 is headed "Decision to detain excluding fast track and criminal case work cases".

"1. There is a presumption in favour of temporary admission or temporary release. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary relief for detention to be justified.

2. All reasonable alternatives to detention must be considered before detention is authorised.

3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved."

Under the heading "Application of the factors in 55.3.12 criminal case work cases Imminence", paragraph 55.3.2.4 says this:

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

Paragraph 55.6.3 is headed "Form IS91R Reasons for detention." It reads as follows:

"... the six possible reasons for detention are set out in form IS91R and are listed below. The IO or person acting on behalf of the Secretary of State must tick all of the reasons that apply in the particular case and as indicated above ensure that a fully justified explanation is retained on file setting out why the reasons ticked apply in the particular case.

- You are likely to abscond if given temporary admission or release.

- There is insufficient reliable information on decide whether to grant temporary admission or release.

- Thirdly, your removal from the UK is imminent.

- You need to be detained while alternative arrangements are made for your care. Your release is not considered conducive to the release public good.

- I am satisfied that your application may be decided quickly using the fast track asylum procedures."

Paragraph 55.14 is headed "Detention for the purposes of removal". It says:

"In cases where a person is being detained because their removal is imminent, the lodging of a suspensive appeal or other legal proceedings that need to be resolved before removal can proceed will need to be taken into account in deciding whether continued detention is appropriate. Release from detention will not be automatic in such circumstances. There may be other grounds justifying a person's continued detention, for example risk of absconding, risk of harm to the public, or the person's removal may legitimately be considered imminent if the appeal or other proceedings are likely to be resolved reasonably quickly. An intimation that such an appeal or proceedings may or will be brought would not of itself call into question the appropriateness of continued detention. (see chapter 60 for separate guidance on judicial review)."

Proceedings, as I have said, were lodged in this case on 11 September 2012 and a notice suspending removal directions followed that day. The detention review of 12 September 2012 recorded that although removal directions had been cancelled, detention was to continue "as removal in the near future is a realistic prospect." This is no doubt by reference to chapter 55.14. Even if proceedings have been started a person's removal may still be legitimately considered imminent if the appeal or other proceedings are likely to be resolved reasonably quickly. A risk of absconding is also recorded in the claimant's detention reviews from the date of 10 August 2012 and had been referred to and was referred to again in the 12 September 2012 review.

In the detention review of 17 September 2012 the following was said:

"A JR has been received. A request to expedite this JR will be made in the light of this. We anticipate decision very soon. Continued detention pending resolution and to effect on removal thereafter is approved."

Two days later the situation was seen to have changed. The detention review of 19 December 2012 said this:

" Proposed to maintain detention until suitable accommodation is found for the subject to be housed. Detention remains appropriate until accommodation is found, which will be by tomorrow. The JR is outstanding and we will be requesting an extension of time to submit AOS."

On 19 September 2012 it was also noted that:

"Release address requested via fax to Brook House IRC. JR is not likely to be dealt with imminently as we will be requesting an extension to submit AOS."

On 20 September 2012 the claimant was granted temporary admission and his release was ordered.

The detention reviews suggest that the reason for the claimant's detention was the defendant's view that the claimant's removal was imminent. That is supported by the witness statement of Mr Sebastian Baker dated 12 June 2014 on behalf of the defendant in which the same point is made.

The Legal Principles.

There are four relevant points about the statutory power to detain pending removal. First, it is common ground that the Secretary of State is bound, all things being equal, to follow her published policy on detention.

Second, the Secretary of State has to interpret that policy correctly. Whether or not she has done so is a question of law.

Third, detention must not breach the principles set out in R v the Governor of Durham prison ex parte Hardial Singh (1984] 1 WLR 704.

The fourth point, subject to that third point, is that there is a question of whether or not on the facts the Secretary of State was entitled to exercise the discretion to detain which is conferred on her by statute. That discretion is vested in the Secretary of State and the court's role on this question is a supervisory role; R(LE) (Jamaica) v SSHD[2012] EWCA Civ 597 at 29.

The question on these facts is whether during the period of detention the Secretary of State was reasonably entitled to conclude that removal was imminent for the purposes of the policy. That involves a judgment by the primary decision maker, the Secretary of State, whether on the facts removal was imminent or not.

Submissions.

Mr Nathan for the claimant makes three preliminary points. First, he submits that the claimant's case throughout was being dealt with by the Secretary of State's Third Country Unit which is a specialist small unit with expertise in removals to EU member states under the Dublin Regulation.

Second, he submits that during the relevant period of detention there was no binding authority of the courts on the position in relation to removal to Malta. He submits that within the space of four weeks in February and March of 2012 two judges had granted permission to apply for judicial review in Maltese cases, one judge had ordered in an oral hearing and a further judge had stayed such a case, and he showed me the orders in those cases.

Third, he submits that the representations of 7 September made these points to the Secretary of State's expert team. By 11 September, he submits, the Third Country Unit had the necessary information to consider the representations and yet that unit issued a decision refusing the representations and detention was continued on that basis.

He further submits that paragraphs 10 and 18 of the defendant's letter of 11 September 2012 showed that the defendant plainly thought that this was a case in which there was a substantive decision of this court holding that challenges to removal to Malta were bound to fail and that this error infected the decision to detain. The position rather, he submits, was that there were live challenges to removals to Malta in the cases to which he has referred me and permission to apply for judicial review had been granted and substantive hearings had been listed in them.

It follows, he submits, because the substantive hearings had not been listed until early 2013, that those claims would not have been resolved imminently and that that in turn meant that removal of the claimant could not be seen as imminent.

Mr Nathan submitted that but for a mistaken belief that this case involved removal to Cyprus, the defendant should have realised that there was no realistic prospect of removal of the claimant pending the court's decisions in the other cases to which he has referred and therefore the presumption in favour of temporary admission was not displaced.

Mr Mitchell for the Secretary of State submits first that it is clear from the letter certifying the asylum claim that the Secretary of State did not wrongly think that the claimant was to be removed to Cyprus. The decision letter has many references to Malta and the only reference to Cyprus is in paragraph 10, which I have read.

Second, he submits that the detention reviews do not refer to the Cyprus case Elayathamby, and nor do they refer to the claimant being someone who could be removed to Cyprus. I accept that submission.

Third, he submits that it is clear that the reason for the detention throughout was that the Secretary of State considered that removal was imminent. He submits overall that in the circumstances the detention was lawful.

Discussion.

I accept Mr Mitchell's overall submission about the reason for detention. The documents show that the Secretary of State considered, rightly or wrongly, that removal was, and continued to be, imminent throughout the period. I also accept his submission that the Secretary of State was not labouring under any mistake about the country to which the claimant was going to be removed and that that country was clearly Malta.

In my judgment the Secretary of State was entitled to conclude during the relevant period for the reasons given in the certification letter that this was a weak case and that removal should and would proceed, despite the fact that permission to apply for judicial review had been granted in other cases involving removal to Malta. This court had not ordered a stay on such cases and the cases listed for hearing in January 2013 were not, as Mr Nathan accepted in argument, test cases. Mr Baker's witness statement shows that removal to Malta was taking place, despite the grant of permission to apply for judicial review in the other cases.

I do accept that the letter of 11 September 2012 contains two mistakes; in paragraphs 10 and 18. I have no evidence about this, but I suspect that the decision maker was using a template decision letter and made two mistakes in customising it for the purposes of this case. First, she inserted in paragraph 10 of the letter one reference too many to "Malta", substituting that for the correct reference in paragraph 10 to" Cyprus." Second, she left the sentence in paragraph 18 which was not appropriate to a Maltese case. What she should have done is to refer instead to the pending applications for judicial review in the Malta cases, which the claimant's solicitors had mentioned in their letter before claim on 7 September.

I have considered carefully whether these two mistakes vitiate the decisions to detain and to maintain detention. In my judgment they do not. First, there is no evidence to suggest that Elayathamby or Cyprus featured in the initial decision to detain. Second, the thrust of the reasoning in the letter of 11 September is not undermined by the mistakes. That is, that this was, given the defendant's analysis of the case law, a weak case and removal could and should therefore proceed. It is true that had Elayathamby been a decision about Malta this case would have been weaker than the Secretary of State supposed that it was. But even on the true facts, that is, that there was as yet no decision in the High Court about removal to Malta, and permission to apply for judicial review had been granted in Malta removal cases, it was still seen as a weak case and in my judgment the Secretary of State's approach would have been exactly the same; see Mr Baker's witness statements.

Removal directions were cancelled once the application for judicial review was lodged. But the policy did not require the claimant to be released at that point if the Secretary of State considered that the judicial review application could be dealt with promptly. This court is familiar with the cases in which the Secretary of State applies for expedited consideration of permission applications on the papers in weak cases and in which detention is maintained in the meantime.

It seems to me that on its proper construction the policy permits the Secretary of State a reasonable period of time in which to continue detention while she considers the implications of the lodging of an application for judicial review and while she assesses its merits. That is so in my judgment even in the case of a judicial review challenging a decision of a specialist unit such as the Third Country Unit.

That that is the position is supported by the decision of Carr J in R (N)v SSHD[2014] EWHC 1974 (Admin). The period after the lodging of the judicial review in that case was a longer period, between 10 September and 7 October, and I fully accept Mr Nathan's submission that that was a very different case on its facts from this case. But it illustrates the approach in principle to the construction of this part of the policy, which I adopt.

In other words in my judgment the policy does not require the Secretary of State to release a person from detention if her attention is drawn to extant challenges. The policy entitles the Secretary of State in my judgment to wait and see if the claimant will lodge his own application for judicial review and if he does so the policy entitles the Secretary of State to take a reasonable amount of time to consider what to do in the light of the lodging of the judicial review.

I consider that on the facts of this case, the time taken to absorb the implications of the lodging of the application for judicial review was not unlawful. For those reasons, this claim fails.

MR MITCHELL: My Lady, there is an application for our costs, obviously subject to any order of the court regarding enforcement.

MR NATHAN: Yes. My Lady, we would say in relation to costs that one needs to bear in mind, I note your Ladyship's reference to the weakness -- in your judgment -- of the claimant's case. I neglected to respond to my learned friend's submissions in that regard. I remind you, my Lady, that ultimately the Secretary of State conceded the substantive element of there case to the extent of reconsideration. She then recertified the case. But actually the recertification was challenged by a second judicial review in which the Secretary of State again conceded and agreed to pay the claimant's costs. So the claimant has, notwithstanding your Ladyship's suggestion that he had a weak case, the Secretary of State has accepted to consider his substantive asylum claim. We say that this is reflected by, potentially, what happened with MB and Others which went to the Court of Appeal and then the Secretary of State withdrew her decisions.

In relation to costs we would suggest that by the time the case came to permission it was academic, ground one was academic at the oral permission hearing because the decision in question had been withdrawn. I am instructed to propose two alternatives. That the claimant get his costs --

MRS JUSTICE ELISABETH LAING: You say this is like the case we had this morning where the substantive ground of challenge was eventually conceded and the bulk of the costs were incurred in that.

MR NATHAN: Yes, and so we would suggest --

MRS JUSTICE ELISABETH LAING: That the costs order should reflect that.

MR NATHAN: Yes.

MRS JUSTICE ELISABETH LAING: All right.

MR NATHAN: Before my learned friend --

MRS JUSTICE ELISABETH LAING: Just tell me what the two alternatives were.

MR NATHAN: There were just a few matters on your Ladyship's judgment. I don't seek permission to appeal, but perhaps it is best you hear from my learned friend first.

MRS JUSTICE ELISABETH LAING: Yes.

MR MITCHELL: The only point I would make, my Lady, is that nothing said in your judgment about the merits was affected by the subsequent litigation. My instructions are the reason regarding the second JR and the concession is because of a technical error regarding the time pursuant to Dublin that removals must be effected within, and there was an oversight on the part of the defendant which meant that the claimant benefited from avoiding the provisions. So it didn't go to the essential merits of the application.

In as much as the other point regarding the eventual outcome of the litigation as has been explained, I agree with that. The only point I would make is of course these are public funds and realistically nothing will be realised against the claimant. But this case, the majority of the preparation, the majority of the litigation costs on both sides, I would suggest, certainly on our side, has been incurred in preparation for this hearing because of course this point, which ultimately is a bad point, is to do with the false imprisonment and has rumbled on for some time.

MRS JUSTICE ELISABETH LAING: Yes, Mr Nathan what do you want to say about that?

MR NATHAN: My Lady, I am troubled by the indication about the technical error. That has never been disclosed to us. No doubt the Treasury Solicitor will provide full details in due course. It seems unlikely given that the certification provision under Dublin was complied with on 31 August, as I understand it. But that is something I think we can discuss, probably outside court.

I am told something very interesting; the JR stops the clock and starts it again. If that is the case then three out of the four MB claimants have benefited as well. I am not sure that that is right, but be that as it may.

MRS JUSTICE ELISABETH LAING: All right, I can't deal with that now.

MR NATHAN: We say ultimately the Secretary of State costs inevitably in this case are back loaded and the claimant's costs are inevitably front loaded. I think that is the nature of the beast, particularly in a case where in the end the Secretary of State initially proposed a stay and put in rather brief amended summary grounds. So your Ladyship has the position. It may be that there is a sensible order that arises from that.

MRS JUSTICE ELISABETH LAING: Yes.

MR NATHAN: In relation to your Ladyship's judgment, just to assist most notably the court reporter, I think your Ladyship referred earlier in the judgment in the material facts to the case of [name given]. I note that that of course subsequently was anonymised by Mitting J, as a technicality that anonymity should be --

MRS JUSTICE ELISABETH LAING: Yes, I just read out the passage.

MR NATHAN: Rather than the reference to [name given] it should be M. Immediately after that, so it should be easy for the reporter to find it, you referred to the recertification in November.

MRS JUSTICE ELISABETH LAING: Yes.

MR NATHAN: In fact that was certification on the human rights ground.

MRS JUSTICE ELISABETH LAING: I see, the earlier one was a Dublin certification.

MR NATHAN: Yes.

MRS JUSTICE ELISABETH LAING: Thank you, that is very helpful.

MR NATHAN: I am afraid I have to accuse your lady of numerical dyslexia.

MRS JUSTICE ELISABETH LAING: Dyscalculia, dysarithmia.

MR NATHAN: Is it dysarithmia? I don't know, it sounds appropriate. Your Ladyship referred to, occasionally, paragraph 55.3 as 5.3 and later on to 55.1.4 when it should be 55.14.

MRS JUSTICE ELISABETH LAING: Thank you, that has been very helpful. I mean that, because when the transcript comes back to be corrected, if there has been a big gap --

MR NATHAN: Yes I don't think there is anything else.

MRS JUSTICE ELISABETH LAING: Thank you very much Mr Nathan.

MR NATHAN: Sorry, my instructing solicitor is quite right. If we can have detailed assessment.

MRS JUSTICE ELISABETH LAING: Detailed assessment, yes. I don't have the costs do I?

MR NATHAN: Of the publicly funded costs, any way, you will make a ruling on costs and I don't think there is anything else to ask.

MRS JUSTICE ELISABETH LAING: No. Doing the best I can I think the right order is no order for costs, because I can't resolve the dispute about the reasons why the main part of the claim was conceded. I make no order as to costs and order a detailed assessment. Is there anything else I can usefully do? No?

Thank you both very much and thank you to your solicitor as well for preparing the documents. It is such a pleasure to have a nice bundle.

MR NATHAN: Shame about the authorities.

MRS JUSTICE ELISABETH LAING: With page numbers. Well no, but you were ill, so --

MR NATHAN: Thank you.