BA & Ors v Secretary of State for the Home Department [2012] EWCA Civ 944

Case No A2/2011/1887

[2012] EWCA Civ 944

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2011] EWHC 1446 (QB)

ON APPEAL FROM THE QUEEN’S BENCH DIVISION

HH Judge Anthony Thornton QC

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/07/2012

Before

PRESIDENT OF THE QUEEN'S BENCH DIVISION

LADY JUSTICE BLACK

LORD JUSTICE DAVIS

Between

Bail for Immigration DetaineesIntervener

Mr James Eadie QC and Mr Robert Kellar (instructed by Treasury Solicitors) for Appellant

Mr Hugh Southey QC (instructed by Deighton Pierce Glynn Solicitors) for Respondent

Ms Helen Mountfield QC and Mr Tom Hickman (instructed by Allen & Overy LLP) for Bail for Immigration Detainees, as Intervener

Hearing Hearing date : 13 March 2012

Judgment

President of the Queen's Bench Division :

[1]The issue in this case is whether, if a person, who is in detention pending removal, raises a claim in the Administrative Court challenging the removal directions and claiming that the detention is unlawful and is refused permission, that person can begin an action afresh in the County Court or the Queen’s Bench Division for damages for the unlawful detention.

The facts

(a) The claim for asylum and its determination

[2]On 24 October 2006, the first three respondents in this court, BA, the mother, and her then two children, BB and BC, aged four and 23 months respectively, all citizens of the Cameroon, entered the UK unlawfully. They were arrested shortly afterwards on 31 October 2006. BA then claimed asylum for herself and her two children. She alleged she had been persecuted for political reasons in the Cameroon and she risked further similar persecution if she returned. She alleged that her persecution involved being subjected to inhuman and degrading treatment and being raped by agents of the state. She claimed it would be impossible for her to relocate safely within Cameroon if she were returned. The Secretary of State, the appellant in this court, refused her asylum claim on 6 December 2006. She appealed to the Asylum and Immigration Tribunal. After protracted proceedings, her appeal was dismissed on 27 November 2007. Permission to appeal to this court was refused on 16 January 2008.

(b) The issuance of removal directions

[3]On 29 January 2008 the Secretary of State issued removal directions for BA, BB and BC. Those directions were withdrawn for various reasons. The Secretary of State then discovered that BA was in the late stages of pregnancy. It was decided there would be no removal until the child was born. BD, her third child (and the fourth respondent to the appeal), was born on 27 March 2008.

[4]The Secretary of State issued further removal directions on 22 May 2008 and directions in connection with that removal for the detention of the family. The directions were served. BA and her children were taken into custody on 27 May 2008. They were held in Yarl’s Wood Immigration Detention Centre until 22 July 2008.

(c) The first judicial review proceedings

[5]On 30 May 2008 BA alone applied through Fadiga & Co, solicitors, for permission to bring judicial review proceedings to challenge the Secretary of State’s decision to remove her. The evidence of Mr Zubeidi of Fadiga & Co was that he had been instructed in late May 2008 solely on her behalf and not on behalf of the children. A fresh asylum claim was lodged on 3 June 2008. The asylum claim was refused by the Secretary of State. The removal directions were affirmed. On 13 June 2008 the Secretary of State served an acknowledgement of service to the judicial review claim. On 18 June 2008 Cranston J considered the application for permission and refused it. (d). Representations made by BA’s solicitors to the Secretary of State after 18 June 2008

[6]After the decision by Cranston J, Fadiga & Co made further submissions claiming that none of the family was fit to travel. They relied on BA’s HIV status and lack of arrangements for her treatment to be continued in the Cameroon; they also relied on the fact that BB and BC were still in the process of being screened for HIV and submitted that that process ought to be completed prior to removal. It was also submitted that BD was too ill to travel and that her anti-malarial treatment and other immunisations had not been completed. The submissions were rejected by the Secretary of State on 3 July 2008.

[7]On 4 July 2008 the Secretary of State issued a new set of removal directions for removal on 21 July 2008. Her solicitors wrote on 11 July 2008 with further submissions and asked that the submissions be treated as a fresh claim.

[8]On 11 July 2008 Dr Nick Lessof, a consultant paediatrician at Homerton University Hospital in London, wrote a letter on NHS notepaper to an official in the Secretary of State’s Department. This is an important letter as it was the foundation for the Secretary of State’s claim that the next set of judicial review proceedings issued by BA on 18 July 2008 (as I set out at paragraph 9 below) was a claim where the lawfulness of the detention was challenged. The letter was headed ‘Detention Centre Rule 35’. It purported to answer points made on behalf of the Secretary of State in earlier correspondence. The first part of the letter dealt with medical issues. The letter then continued: “There are a number of points I should like to make. … 2. Detention of a baby at age 2 months when essential immunisations are already planned at age 2, 3 and 4 months is indefensible. 3. You have made no attempt to consider [BD]’s health needs prior to detention. …10. Your policy is that families will only be detained “when absolutely necessary and for the shortest possible time”.

11. There is no necessity to detain this family who will not abscond given their dependence on health services.

12. You are unable to remove this family within the next two months due to legitimate health need.

13. You therefore need to release the family. 14.

(d) The second judicial review proceedings

[9]On 18 July 2008 a second application for permission to bring judicial review proceedings was made. The claim form described the claimants as “[BA] plus three”. It is not clear how these came to be added as the evidence of Mr Zubeidi was that he had never been instructed on behalf of the children.

[10]The claim form identified the decision which was to be judicially reviewed as the removal directions dated 4 July 2008 to which I have referred at paragraph 7. The relief sought was the stay of removal pending consideration of health concerns. The statement of facts relied on was in the following terms:

“The contents of the immigration factual summary are accepted. The claimant has secured medical opinion requesting a stay of removal. Following the defendant’s refusal a further letter was served relating to the refusal to stay removal. D has failed to respond to date.”

That was a reference to the letter sent by Dr Lessof dated 11 July 2008. The statement of grounds described the claimant in the same terms as the claim form. Ground 1 related entirely to the claim for judicial review of the decision of 4 July 2008. Ground 2 was in the following terms:

“It is submitted that the defendant has acted against its own policy by failing to release the claimants from detention by letter dated 3 July 2008, which is contrary to the medical opinion served.”

There was a third ground claiming that the Secretary of State had acted unlawfully by failing to provide a decision on the human rights claim. The grounds contained a caveat which stated they had been settled on an emergency basis and in great haste. Permission was sought to correct any errors within seven days or to amend the grounds following the Secretary of State’s summary grounds of defence. The relief claimed was a quashing order of the decision to set removal directions and a declaration that to proceed with removal was unlawful. It also contained a claim for, “such further or other relief as the court finds fit”.

[11]On 19 July 2008 the Secretary of State disputed the claim on a basis relating to the medical evidence. However the further set of removal directions was set aside by the Secretary of State on 21 July 2008. BA and her children were released on 22 July 2008. (e). The proceedings after the withdrawal of the removal directions

[12]On 1 October 2008 Fadiga & Co and the Treasury Solicitor signed a consent order in the following terms:

“The present application for judicial review be stayed for 28 days from the date of this Order for the Defendant to respond to the Claimant’s submissions dated 11 July 2008.”

There were further directions in relation to the response. The reference to the document dated 11 July 2008 was a reference to Dr Lessof’s letter.

[13]On 24 October 2008 the Secretary of State wrote a response to Dr Lessof’s letter of 11 July 2008, though this was addressed to the solicitors. The letter dealt with the medical grounds set out in that letter.

[14]On 12 January 2009, Fadiga & Co wrote to the Treasury Solicitor (acting on behalf of the Secretary of State) making clear that they confirmed reliance on the original set of grounds. The letter essentially dealt with the medical conditions of BA and her children.

[15]On 13 February 2009, in accordance with the terms of the consent order, the Secretary of State responded to the grounds in summary grounds of defence. The greater part of the document dealt with the removal directions but at paragraphs 15 and 16 addressed an issue under the heading, “Failure to adhere to detention policy”: “15. The Defendant submits that detention of the Claimant and her family was at all times in accordance with the relevant policies and procedures. It is well accepted that detention is appropriate where removal is imminent. Following the failure of the Removal Directions set for 21 July 2008, the Claimant and her family were released from detention on 22 July 2008. 16. During detention, the Claimant and her family’s circumstances were reviewed weekly to ensure that detention remained appropriate.

(f) The letter before action of 11 March 2009

[16]On 30 July 2008, BA instructed Mr Hundt of a different firm of solicitors, Pierce Glynn. It was his evidence that Pierce Glynn had been instructed to act in the damages claim for unlawful detention and inadequate medical treatment whilst in detention. It was his evidence that his firm contacted Fadiga & Co to ensure there was no duplication in work between the damages claim and the claim in respect of the removal directions. His evidence was that they agreed that following BA’s release from detention Fadiga & Co would concentrate exclusively on the challenge to the removal directions whilst Pierce Glynn & Co would represent them in their claim for damages for unlawful detention.

[17]In accordance with that division of work, Pierce Glynn wrote a letter before action to the Secretary of State on 11 March 2009 claiming that BA and her children had been falsely imprisoned and there had been breaches of their Convention rights. The letter also set out BA’s intention to rely upon breaches of published policy under Hardial Singh principles. (g). Thedecision of Cranston J in relation to the second judicial review claim

[18]On 20 March 2009, Cranston J considered the application for permission to bring the second set of judicial review proceedings. He refused permission and abridged to three days the time for renewal of the application by an oral hearing. His reasons were as follows:

“This claim is an abuse of process. The Grounds mention malaria and TB. Yet the letter from Nurse Emma Kelly demonstrates that the claimant and her family were offered malaria prophylaxis on a number of occasions and have refused it. The Secretary of State was entitled to act in accordance with the objective evidence about treatment for TB in Cameroon. I have read the letters of both Dr Lessof and Dr Jones but they do not address the legal issues now before me. There can be no objection to the earlier detention.”

He then certified the claim as totally without merit.

[19]There was no renewal of the application. The file in this court was then closed. (h). The issue and service of proceedings in the Queen’s Bench Division

[20]On 26 May 2009 these proceedings were issued in the Queen’s Bench Division by Pierce Glynn claiming damages for false imprisonment. The claim was not served until 12 November 2009. A defence was served on 6 January 2010 in which the Secretary of State claimed that the claim was an abuse of process.

[21]The Secretary of State made an application to strike out the claim on 25 March 2010 and on 19 August 2010, after a hearing, Deputy Master Rose struck out the claim. He granted permission to appeal which was heard by HHJ Anthony Thornton QC. In a judgment dated 8 June 2011 he allowed the appeal; in a long judgment, he determined the issue primarily on the basis it was not abusive to bring a private law claim for damages for detention on the basis of the decision in ID v Home Office

[2006] 1 WLR 1003

. Permission to appeal to this court was granted on 1 September 2011.

[22]The claimants have not been removed. They are still in the United Kingdom. We were told that the file had been mislaid and no progress had been made on their removal.

The submissions of the parties

[23]Although the skeleton arguments contained submissions relating to specific issues determined by the judge and general submissions relating to the question as to whether there were grounds for interfering with the discretion exercised by the Deputy Master, the argument on the oral hearing was directed at the application of the principles in Johnson v Gore Wood

[2002] 2 AC 1

. The submission of the Secretary of State was in summary:(a) The second application for judicial review had raised as a distinct ground of challenge the lawfulness of the detention. It had been so treated in particular in the light of Dr Lessof’s letter of 11 July 2008.

(b) That claim was maintained in the application for judicial review after the release of the claimants who included the children.

(c) It was not at any time abandoned by Fadiga & Co. The letter before action sent by Pierce Glyn on 11 March 2009 was in essence based on the same grounds as were being advanced in the application for judicial review which was still extant.

(d) On well established principles enunciated in Johnson v Gore Wood, the claim was in the circumstances an abuse of process. It could not be right to give the claimants the opportunity to try to bring the claim twice and avoid making a renewal application in the judicial review proceedings.

[24]On behalf of the claimants, Mr Southey QC accepted that the appeal should be determined on the principles enunciated in Johnson v Gore Wood. He contended that on the broad merits based approach there enunciated, the claim was not abusive.

[25]On behalf of Bail for Immigration Detainees, Miss Mountfield QC, very helpfully, drew to the court’s attention reasons why a person in detention pending removal should be entitled to challenge the removal directions in judicial review and bring ordinary civil proceedings for damages in a separate action. She pointed to the difficulty of obtaining sufficient evidence to put forward a claim for damages at the same time as a removal direction was challenged, the benefits of the right to disclosure in an ordinary civil action and the fact that there was no good reason to deprive the claimant of the right to bring an action within the ordinary limitation period.

The relevant factors

[26]The principles applicable are well established and set out in Johnson v Gore Wood. Lord Bingham’s judgment, at page 31, after referring to the principles in Henderson v Henderson sets out the general considerations – the need for finality and that a party should not be vexed twice. If a claim should have been raised in earlier proceedings, it might therefore well amount to an abuse of process. Whether it did should :

“be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

[27]Although it is of paramount importance to stress that each case must be decided on this broad merits based approach, there are, in cases where an application has been made for judicial review by a person in detention challenging removal directions who also claims his detention is unlawful, some general factors to which a court will ordinarily have regard if further proceedings are brought after the refusal of permission.(a) The question as to whether detention is lawful will be closely related to the removal directions and the time within which removal can be effected. This question raises issues which the Administrative Court is best placed to determine, whereas the quantum of damages can best be determined in the general list of the Queen’s Bench Division or the Central London County Court or another County Court. Although it is plainly permissible to bring a claim for damages for immigration detention alone as an ordinary civil claim (see ID at Paragraphs 102-105), the efficient administration of justice favours issues of immigration law in such claims being determined by judges with experience of asylum and immigration law.

(b) Although a County Court or the High Court can transfer a claim to the Administrative Court when such issues arise (see paragraph 103 of ID), where a claim is brought on behalf of a person in detention pending removal challenging removal directions by an application for judicial review, then any claim in respect of detention said to be unlawful should also be brought in the judicial review proceedings, given the close relationship between the issues.

(c) That is because it is important in the overall public interest that all the issues in relation to the lawfulness of the removal directions and the legality of the detention are determined by the Administrative Court in one set of proceedings having regard to the overall business of the courts. It is not permissible to circumvent these objectives: see Carter Commercial Developments Ltd v Bedford Borough Council

[2001] EWHC 669 (Admin)

at paragraphs 32 and following. Moreover, enabling the claimant to litigate the issues in two sets of proceedings would unnecessarily place a significant and unjust burden on the Secretary of State.

(d) The importance of orderly case management under the Civil Procedure Rules is a highly relevant consideration: see Lord Woolf MR in Clark v University of Lincolnshire and Humberside [2000]1 WLR 1988 at paragraphs 34-36; and Chadwick LJ in Securum Finance v Ashton

[2001] Ch 291

at paragraphs 34-5 and 52.

(e) The fact that in an ordinary action there will be disclosure will generally make no difference, as the Secretary of State is under a duty of candour in judicial review proceedings. However any lack of time on a claimant’s part to obtain the necessary evidence for a claim relating to unlawful detention will be material in considering whether there is an abuse of process.

(f) Where the Administrative Court has determined an issue or refused permission to bring a claim or advance an issue on a permission application, then even though that determination will not usually give rise to an issue estoppel, it is generally not permissible for the claim or issue to be re-litigated between the same parties in those proceedings or in fresh proceedings: see the authorities referred to by Simon J in R (Ecopower UK Ltd) v Transport for London

[2010] EWHC 1683 (Admin)

at paragraphs 19-22; R(Opoku) v Principal of Southwark College and Others

[2003] 1 WLR 234

where Lightman J considered the circumstances in which grounds in respect of which permission had been refused could be raised at the full hearing.

The present appeal

[28]It is necessary to apply the broad merits based approach set out by Lord Bingham by examining all the circumstances.

[29]First, the position on the franchising of legal aid appears to have been a significant factor that has had an important influence on the course that this litigation took. Mr Hundt of Pierce Glynn helpfully at our request provided an explanation for the court after the conclusion of the hearing. His firm, Pierce Glyn held a public law franchise, but not an immigration franchise. Under the legal aid arrangements, it was generally the practice that only firms with public law contracts could bring a publicly funded claim for damages for immigration detention. Those firms without that franchise, but with a franchise in relation to immigration and asylum law, could generally only bring proceedings to challenge the removal directions. Fadiga & Co had therefore referred the claim for damages for detention to Pierce Glynn who held a public law franchise. Such a reference was quite common.

[30]These arrangements made by the Legal Services Commission, as in other areas, have an important effect on access to justice and the fair and proper administration of justice. It is deeply regrettable that this consequence is not recognised by those who devise the arrangements at the Legal Services Commission. No doubt they have an eye on their own considerations for the operation of an efficient legal system without thinking properly about considerations of justice. Although it is plainly necessary for the Legal Services Commission and the Home Office to examine the rationality of the arrangements made by the Legal Services Commission for franchising its immigration claims, while they subsist the arrangements are an important factor in assessing whether the bringing of separate proceedings for damages for detention is an abuse of process. It cannot be just to penalise a litigant when the lawyers cannot by reason of funding arrangements made by the State through the Legal Services Commission give a full range of the advice and litigation services necessary for the fair and proper bringing of appropriate remedies. This factor counts very strongly against these proceedings being an abuse of process.

[31]Second, as was emphasised by Mr Southey QC, the position of the child claimants is a further consideration. The evidence of Mr Zubeidi, as I have set out, was that he had not been instructed on behalf of the children and therefore had not sought the appointment of a litigation friend. The case advanced on their behalf appears to have been based on what Dr Lessof did. Their description as parties to the second set of judicial review proceedings was indicative of the scant regard paid to the issue. In short, the position of the children was not properly safeguarded.

[32]Third, the nature of the claim is an important factor: see Clark at paragraph 36. The claim as advanced in the second application for judicial review was plainly directed at the question of removal; it identified the decision which was challenged as the removal direction of 4 July 2008. The challenge was principally based on health issues. It made clear that the application had been issued in great haste. Of course it contained a ground relating to the unlawfulness of the detention, but that was in the briefest of terms and rested substantially on the letter from Dr Lesoff.

[33]Fourth, the claimants have not behaved in any way which was culpable: this is an important consideration – see Aldi Stores v WSP Group Ltd

[2008] 1 WLR 748

at paragraph 18. The children cannot in any event have been culpable.

[34]Fifth, by the time of the decision of Cranston J on 20 March 2009, the letter before action in the detention claim had been written. The focus of the Secretary of State’s response to the judicial review proceedings had been in relation to the removal directions. Given all the circumstances I have set out, it is hardly surprising that there was no renewal of the application for permission.

[35]Sixth, in all the circumstances of this unusual case, there was no unjust burden placed on the Secretary of State as there were good reasons for the second set of proceedings: cfDexter Ltd v Vlieland-Boddy

[2003] EWCA Civ 14

at paragraphs 49-53.

Conclusion

[36]In all the circumstances, applying a broad merits based approach, I do not in the unusual circumstances of this case consider that there was an abuse of process. I would therefore dismiss the appeal. However, assuming that the position on legal assistance does not remain as it is, for the future a claimant in detention who challenges the legality of removal directions will be well advised to raise in the judicial review proceedings any claim in relation to the legality of the detention or run the real risk that, where there is no change of circumstances, a subsequent claim for damages for detention will fail as an abuse of process.

Lady Justice Black :

[37]I agree with the President of the Queen’s Bench Division.

Lord Justice Davis :

[38]I agree that this appeal should be dismissed.

[39]A claim in respect of alleged wrongful detention was included in the second Judicial Review claim. It was, however, clearly tangential to the principal thrust of those proceedings – that is, to challenge the decision to set removal directions. But all the same it was sufficiently adumbrated to cause Cranston J to indicate, as part of his reasoning in deciding to refuse permission on the papers, that there could be no objection to the earlier detention (albeit Mr Eadie accepted that no issue estoppel or application of the doctrine of res judicata arose from that). In my view, in deciding overall whether the private law proceedings were an abuse it is of significance that no attempt to renew the application to an oral hearing was made – by this time, indeed, Pierce Glyn had written the pre-action letter indicating an intention to issue private law proceedings for damages for alleged wrongful detention. In applying the Johnson v Gore Wood test, that is relevant: matters might have stood on a different footing had the application for permission nevertheless been renewed to an oral hearing (attended, perhaps, by counsel for the Secretary of State as respondent) when all issues – including the assertion of wrongful detention – might have been debated and adjudicated upon.

[40]I would not, for myself, attach in this case very great significance to the position of the children as parties. Whatever the formal position as to instructions as indicated by Mr Zubeidi in his evidence, as held out to the Secretary of State the children were parties (“+3”) to the second Judicial Review claim. Their position, in substance, is inextricably linked with their mother’s. In any event, the realities are indicated by the fact that – as we were told – the mother has been appointed litigation friend for the children in the private law proceedings. Hereafter, at all events in a context such as the present, it should not be assumed that there can be evaded the potential application of Johnson v Gore Wood simply by naming the parents as sole claimants in the judicial review proceedings and then attempting to bring in the children as parties in subsequent proceedings.

[41]That said, I agree that the private law claim here, given the particular circumstances, cannot be styled an abuse of process or unreasonable harassment. I understand Mr Eadie’s concern that not to strike out the private law proceedings in this case might “raise a monster” (as he put it) for the future. That concern cannot be entirely removed; but it can at least be alleviated by emphasising the special and unusual facts of this case. I would also wish in this regard to express my entire agreement with the observations of the President in paragraph 27 of his judgment. I add that if there is a case, such as the present, where a private law claim for damages for past unlawful detention is being pursued without any abuse of process it does not follow that that of itself will, either de facto or de jure, operate so as to require a stay on removal in the meantime if the challenge to the unlawfulness of the removal directions has been determined adversely to the claimants.

[42]I would also add that I found the letter of Dr Lessoff – which was incorporated by reference into the second set of proceedings – in some respects most unsatisfactory. It is surely not acceptable that a consultant paediatrician, writing in his official capacity on NHS notepaper, should for the purposes of litigation advance submissions and arguments going well beyond matters of medical expertise and to do so in a thoroughly tendentious way. i). The second application for judicia

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