Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768

“This note relates to cases in which the Home Office proposes to return an asylum claimant to a Member State of the European Union under the Dublin Convention. Particular difficulties arise in this type of case as a result of the time constraints placed on the Home Office by the terms of that Convention. Once the relevant Member State has indicated that it is prepared to accept responsibility for consideration of the Applicant’s asylum claim the Home office has one month from the date of that acceptance to transfer the asylum claimant unless, inter alia, judicial review proceedings are instituted (the commencement of proceedings stops the clock for the purpose of the time limit). Within the period of one month referred to above the receiving Member State will be setting up reception arrangements which may involve transport and accommodation. In these circumstances it is most important that, if a judicial review application is to be instituted, it should be done quickly. Successive representations and threats of judicial review which do not materialise until the last minute cannot be easily accommodated in the context of the Dublin Convention. Therefore, having consulted the Crown Office, the Home Office wishes to indicate that it will normally require judicial review proceedings in such cases to be instituted within 5 working days of the Applicant being notified of the proposal to return him to another Member State. The Home office will not normally, in the absence of a direction by the court in a particular case, be prepared to defer removal directions where proceedings are threatened or instituted after that time.”

“The Home office note stipulates that 5 working days be allowed from when the prospective Claimant is served with the notification of the Defendant’s decision to remove him or her to the third country. This grace period of 5 days is triggered by the service of the initial decision and therefore can clearly only apply to an initial application for permission to bring a judicial challenge. The Defendant would reasonably expect all relevant matters to be raised in the course of one judicial review application. It is, nevertheless, the Defendant’s normal practice not to remove a Claimant if a second, or subsequent, judicial review application has been lodged in proper form with the Administrative Court Office. However, he takes the view that he is under no obligation to give successive 5 working day periods to permit Claimant’s solicitors to make such repeat applications; nor is he constrained to cease his proper and lawful actions to remove a Claimants merely because the Claimant’s solicitors have intimated their intention to lodge a further judicial challenge. Indeed, where such a serial application is, in his view, a clear abuse of process, he may decline to halt the removal in the absence of an Order or Direction from the Court. In those circumstances, he makes it clear to the Claimant’s representatives (or the Claimant himself if unrepresented) that he taking that stance, and they are fully aware that a Court order is required if removal is to be halted.”

“65. The restriction of the published policy to the first judicial review proceedings is reasonable: judges are only too well aware that there may be repeated unmeritorious applications for judicial review that differ little from earlier proceedings. It is also a possible interpretation of the policy; although it would be greatly preferable if the restriction were published. 66. For the same reason, I would also accept the reasonableness of a policy that normally refused to delay the return of a person whose first application for judicial review had failed unless there were a court order prohibiting his return to the third country. It would also be reasonable to refuse to delay implementation of a third country removal unless and until the Home Office had sight of the claim form and had considered it and concluded that there was an arguable case. But that is not the Home Office’s policy. Mr Taylor states: “in the event that the Claimant’s solicitors had lodged a second application for JR with the Administrative Court Office then any removal directions then in place would have been cancelled. The Claimant’s removal would no longer be imminent and his continued detention would, in all circumstances, no longer have been justified. This action would have been fully compliant with the guidelines set out in Chapter 38 of the Operational Enforcement Manual. … Immigration solicitors are also well aware that an application for judicial review suspends the removal of the Claimant and that it would be most unlikely that detention would be maintained throughout protracted judicial review proceedings”. 67. I read this to mean that in the normal case, the institution of judicial review proceedings for the second time in a third country case will automatically lead to a suspension of removal; in which case, removal not being imminent, detention for the purposes of removal alone is not justified. This practice means that a genuine statement by the applicant’s solicitors that judicial review proceedings are to be instituted is ignored, as it was in the present case.”

“My reasons are in essence the following. First the claimant’s solicitors had given notice, albeit informally, that they would appeal against the decision once it was served on him. There was an indication of that as early as 1st November 2002, but it was certainly made clear on 6th November 2002 after they had learned that the claimant had in fact been detained. Secondly, it is accepted by the Secretary of State that removal was not imminent up to the point at which the decision was served on the claimant on 6th November, and also after the point at which a formal notice of appeal had been lodged. Accordingly, it is also accepted that (absent other factors) it would have been contrary to the policy to detain him before 6th November or, as I understand it, after the notice of appeal was formally lodged. That indeed appears to be consistent with what the evidence on behalf of the Home Office was, as summarised in paragraph 67 of the judgment of Stanley Burnton J in the Nadarajah. Further, it was accepted at the oral hearing before me that once an appeal had been lodged, it is inappropriate to require a person to give an interview to the authorities of the state to which he will be removed in order to facilitate the obtaining of a travel document. This is no doubt for the sound reason that such an interview might lead to information begin provided which might put the claimant or his family, who in the present case are still in Sri Lanka, at risk on the hypothesis that his appeal on human rights grounds may succeed 40 However, it is said on behalf of the Secretary of State that in the interim period removal was imminent. In my view, that is to take an excessively formalistic approach to the question, and one which is not in keeping with the spirit with which English law regards personal liberty. I have already mentioned the “jealous care” to which Lord Scarman referred in Khawaja. Thirdly, the fact is that there is always going to be some delay in lodging papers against a refusal decision. That is why a certain period is allowed for an appeal of ten working days, as it was in the present case. Even if the claimant’s representatives are able to lodge the papers within a day or two, the Secretary of State’s submission would mean that the claimant could be detained for that period for apparently no good reason at all. It was submitted by Ms Laing that on the facts of the present case, the immigration officer was entitled to take the view that once a refusal decision has been taken a person is more likely to “do a runner”, as she put it, than before, even if they have a good record of compliance in the past. That again seems to me to invite a formalistic approach. 41. The policy to which I have referred itself recognises in a number of passages that a person who has an appeal pending is going to have an incentive to comply with conditions and so will tend not to need to be detained. If that person has already indicated that he wishes to appeal but has not yet lodged the papers, it seems to me that the same considerations are likely to apply. 42. It was also submitted by Ms Laing that the requirement that there should be a formal notice of appeal provided certainty so that immigration officers know where they stand. Certainty is, of course, a virtue in public administration; but justice is even more important. In order to avoid the risk that threats of appeals will be used in an abusive way or to string things out, it seems to me that the relatively short time limit for appealing should cater for that. It is better, in my opinion, if the state has to wait ten working days before deciding to detain a person than for a person to be detained only because he has not yet taken the formal step of lodging the notice of appeal even though he has informally given notice that he would like to appeal. Even if I were wrong about this in general, the Secretary of State appears to have no answer to the point that once the formal appeal had been lodged in 12th November 2002, the claimant should have been released even on his own understanding of his own policy. That was not done in the present case and it seems to me that the claimant was detained needlessly, in any event, for approximately three days.”

“60. Applying the principles which I have identified as being relevant under the Human Rights Act and in particular the principle of proportionality, in my judgment the decision to detain the claimant in the present case was unlawful as being contrary to Article 5(1). This is essentially for the reasons I have given above in relation to domestic law. Putting it in terms more shortly of Convention language, the state has a legitimate aim of ensuring compliance with its immigration controls. However, there was on the facts of this case no reasonable relationship of proportionality between the means chosen, in other words detention, and the legitimate aim in view. This is because it was accepted that (absent other factors) the claimant should not be detained once a formal notice of appeal had been lodged. The only reason he was detained in reality was that he was theoretically removable in that short interim period when an informal notice of intention to appeal had been given, but no formal notice had yet been lodged. Having regard in particular to the principle that Convention rights should be practical and effective, not theoretical and illusory, and also to the fact that one is dealing with the bedrock principle of personal liberty, in my view that was to take an excessively formalistic approach, even giving due deference to the judgment of the executive, which I do. Accordingly, the detention of the claimant in November 2002 was unlawful under Section 6(1) of the Human Rights Act.”

“65. … . It seems to us that the [ECtHR] is considering as lawful detention pending the consideration of an application for leave to enter or the making of arrangements for deportation and not applying a test of whether the detention is necessary in order to carry out those processes. The inroad that we believe that the European Court of Human Rights has made into the right of immigration authorities to detain aliens pending consideration of their applications for leave to enter, or their deportation, is that these processes must not be unduly prolonged. It is in relation to the duration of detention that the question of proportionality arises. …”

“44. There remains the issue whether, even if detention to achieve speedy asylum decision-making does fall within Article 5(1)(f), “detention was unlawful on grounds of being a disproportionate response to the reasonable requirements of immigration control”. 45. In Chahal the Court of human Rights said that the lawfulness of detention had to be seen against the substantive and procedural rules of national law “but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness”

“112. … Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5(1)(f) provides a different level of protection from Article 5(1)(c). Indeed, all that is required under this provision is that “action is being taken with a view to deportation”

“ … Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness.”