The Secretary of State for the Home Department v JM (Zimbabwe) [2017] EWCA Civ 1669

Case No C4/2016/3721/QBACF[2017] EWCA Civ 1669
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE JAY) [2016] EWHC 1773 (Admin)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/10/2017
Before
LORD JUSTICE McCOMBELORD JUSTICE UNDERHILLLORD JUSTICE FLAUX
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantJM (ZIMBABWE)Respondent
Julie Anderson (instructed by the Government Legal Department) for AppellantRory Dunlop (instructed by Duncan Lewis) for RespondentHearing Hearing date: 11 October 2017
Judgment

Introduction

[1]The Secretary of State appeals against the declarations made by Jay J on 15 July 2016 that(i) she cannot lawfully require the respondent JM under section 35 of the Asylum and Immigration (Treatment of Claimants) Act 2004 (“the 2004 Act”) to tell officials at the Zimbabwean Embassy that he agrees voluntarily to return to Zimbabwe; and(ii) that he is entitled to substantial damages against the Secretary of State for unlawful immigration detention between 15 July 2014 and 25 May 2016 (save for the period between 21 April and 6 September 2015 when he was serving a sentence of imprisonment).[2]Jay J gave permission to appeal under CPR 52.6(1) (b), namely that there was some other compelling reason for the appeal to be heard. The Grounds of Appeal originally lodged by the Secretary of State were somewhat discursive and, on 2 November 2016, Underhill LJ ordered her to serve a more concise summary and to seek permission to appeal in relation to any Ground for which Jay J had not given permission. More concise Grounds of Appeal were served on 28 November 2016, although they still ran to 14 Grounds, many of which overlap with each other.

The factual background

[3]JM is a national of Zimbabwe born on 10 October 1987. He has been HIV positive since birth. He came to the United Kingdom in July 2002 aged 14 at the suggestion of his aunt, a nurse who was living in the United Kingdom, with a view to seeking treatment. As the judge said at the outset of his judgment at [3], although the Secretary of State has made no formal decision declaring JM an illegal entrant, were she to do so, that decision could not be impugned.[4]On 5 November 2002, JM applied for indefinite leave to remain on medical grounds and as a dependant of his aunt. He provided his Zimbabwean passport. His application was refused on 12 July 2004. His appeal was dismissed by an Immigration Judge in 2005. Although the Immigration Judge accepted the medical evidence that JM had access to antiretroviral drugs in the United Kingdom to which he would be unlikely to have access in Zimbabwe, his condition was not such that removal to Zimbabwe was contrary to Article 3 of the European Convention on Human Rights. It has remained the constant response of the Secretary of State to JM’s case that he needs to stay in the United Kingdom to have access to antiretroviral drugs, that he is not entitled to receive costly treatment at public expense given that he has no right to be here and his condition is not such as to engage Article 3.[5]In February 2006, JM applied for asylum. That claim was refused and his appeal against that decision was dismissed, his appeal rights becoming exhausted in October 2006. He had been granted temporary admission with a requirement to report. Apart from one excusable default, he reported as required from 2006 until his arrest in 2011.[6]On 4 May 2011, the Claimant was arrested for possession with intent to supply quantities of class A and class B drugs. On 20 May 2011, he told immigration officers, who were explaining the deportation process to him, that he did not want to return to Zimbabwe. On 26 August 2011, after his plea of guilty earlier that month, he was sentenced to a total of 4 years' imprisonment.[7]The automatic deportation regime prescribed by section 32 of the UK Borders Act 2007 (“the 2007 Act”) was activated prior to the custodial element of his sentence coming to an end on 5 May 2013, so that upon his release from prison, JM was taken into immigration detention under section 36(1) of the 2007 Act, which provides for a power of detention whilst, in effect, the Secretary of State considers whether any of the exceptions to automatic deportation set out in section 33 apply. The Probation Service assessed him as posing a 4% risk of reoffending within one year and 8% within two years and a low risk of serious harm. Detention Reviews by the Border Agency also assessed him as a low risk of harm and a low risk of reoffending.[8]As soon after his detention as 28 June 2013, officials of the Border Agency were recommending his release in the light of the impossibility of effecting involuntary removal to Zimbabwe, the low risk of reoffending and harm and their assessment of the risk of absconding. That recommendation was overruled or, at least, any decision to release was deferred by more senior officials.[9]On 11 November 2013, he was served with a decision to make a deportation order under section 32(5) of the 2007 Act and with the deportation order. Thereafter he was held in detention pursuant to the powers in section 36(2) of the 2007 Act. He appealed against the decision to make a deportation order. Before his appeal was heard, Border Agency officials continued to have doubts as to whether his continued detention could be justified. On 9 January 2014, the Assistant Director wrote on the Detention Review:
“However, it seems unlikely that removal will take place within a reasonable time scale, considering his ill health and low risk of harm and reoffending it is becoming more difficult to justify ongoing detention. Therefore, although I authorise detention for a further 28 days, I recommend that a release referral should be drafted once suitable release arrangements have been put in place.”
[10]On 26 February 2014, the First-tier Tribunal dismissed JM’s appeal, holding that his conviction excluded him from the protection of the Refugee Convention and that his Article 3 claim failed on the basis that his illness had not reached a critical stage where there were compelling humanitarian grounds for not removing him to Zimbabwe. His appeal rights became exhausted on 10 March 2014.[11]On 3 June 2014 JM was offered the opportunity of an assisted return to Zimbabwe under the Facilitated Returns Scheme, but he declined it. Given that his passport had expired, his deportation to Zimbabwe depended upon the grant to him by the Embassy of an Extraordinary Travel Document ("ETD"). It has been the settled policy of the Zimbabwean Government since 2002 that it will not grant ETDs to its nationals who do not wish to return. This is a particular feature of the present case.[12]As a preliminary step to the obtaining of an ETD, JM needed to complete a bio-data form. He was interviewed by immigration officers on 1 October 2014 who recorded him as being “polite and courteous throughout” but he explained that he did not want to return to Zimbabwe. He declined to sign the bio-data form although, after a lengthy discussion, he said he was getting close to making a decision about returning. Despite it being explained to him that continued non-compliance could lead to prosecution, he maintained the position that he did not wish to complete the bio-data form.[13]On 3 November 2014, JM was served with a notice under section 35 of the 2004 Act requiring that he attend an interview with immigration officers and complete a bio-data form. He refused to complete the form, although he said in answer to questions from the officers who served the notice that he was “on the fence right now” and when asked why he would not comply, said:
“I’m still thinking about it. I’m still getting advice from people”
. On 15 December 2014, he was arrested for non-compliance with the requirements of the notice. He then agreed to complete the form, so the decision was taken not to charge him.[14]On 28 January 2015, JM was given a Disclaimer in a Deportation Case form. He ticked the box which stated that at Lincoln police station he had stated that he would now comply with the Zimbabwean ETD application but refused to tick another box which stated:
“I state that I will comply with the [ETD] progress as I am will[ing] to go home to Zimbabwe”
. He explained to the officers that he was willing to comply and give the Secretary of State any information needed, but he did not want to return to Zimbabwe. He did not wish to sign the disclaimer because he did not wish to return.[15]On 4 February 2015, JM was served with a further section 35 notice requiring him to attend an interview at the Zimbabwean Embassy and, amongst other things:
"to give your consent to return to Zimbabwe if requested to do so by an Embassy official"
. On 11 February 2015, JM attended the Embassy with immigration officers Mr Richard Barraclough and Ms Jo Ryan. He was asked by an Embassy official if he wanted to return to Zimbabwe and he replied that he did not want to go back to Zimbabwe. He said that he wasn’t willing to go but would if he had to. The Embassy official then declined to issue a travel document.[16]On 21 April 2015, the same immigration officers arrested JM at the Morton Hall Immigration Centre for an offence under section 35, due to his failure on 11 February to comply with the section 35 notice. He was taken to Lincoln police station, where the officers interviewed him under caution. He repeated what he had said to the Embassy official as set out in the previous paragraph. He then said:
“I don’t see how it’s my fault. The Zimbabwean Embassy could have issued it [the ETD] anyway” to which Ms Ryan responded: “No they couldn’t”
. That was a clear recognition of the practical reality that the Zimbabwean authorities would not issue an ETD unless the individual in question said he or she was willing to return to Zimbabwe.[17]In his witness statement dated 20 January 2016, JM says that he saw a solicitor at the police station for a short time, who advised him to plead guilty so that he would get a shorter sentence. He then pleaded guilty at the Magistrates Court on 22 May 2015 and was sentenced to 9 months imprisonment, the custodial term of which was served in prison, not in immigration detention.[18]On 13 August 2015, the Home Office wrote to JM in prison asking him to verify that he would comply in attending the Zimbabwean Embassy for the purpose of a face to face interview. On 21 August 2015, his case was discussed at the Section 35 Tasking Board meeting and accepted for section 35 prosecution. The prosecutions team of the Border Agency are recorded as saying they would prosecute “as many times as it takes”. On 6 September 2015, at the end of the custodial element of his sentence, he was detained again under immigration powers.[19]On 12 November 2015, JM applied for a bail address pursuant to section 4(1) (c) of the Immigration and Asylum Act 1999. On 27 November 2015, he submitted a request to see “on-site immigration”. This stated:
“I would like to give my consent to go to the Embassy”
. On 8 December 2015, however, his solicitors, Duncan Lewis, wrote to explain that their client was willing to go to the Embassy, although they went on to say that, if he was asked by officials there whether he wished to return to Zimbabwe, he would answer truthfully that he did not. They went on to say that they did not consider that the Secretary of State could lawfully require JM to lie to Embassy officials and pretend that he was willing to return.[20]On 11 January 2016, the Secretary of State served on JM a further notice under section 35 of the 2004 Act. The notice required him to attend the Zimbabwean Embassy for interview on 20 January 2016, and, amongst other things:
“agree to return to Zimbabwe if asked as part of the requirements for re-documentation, by Embassy official”
. The legality of that request was challenged by JM’s solicitors. On 19 January 2016, the Claim Form in these Judicial Review proceedings was filed. On the same day Walker J made an Order that, pending determination of the application to apply for judicial review or further Order, the Secretary of State could not take JM to the Zimbabwean Embassy or in any other way arrange for him to be interviewed by anyone acting for that Government.[21]On 21 March 2016, Ms Sara Cockerill QC granted JM permission. From then until the hearing before Jay J on 5 July 2016 there were a series of procedural failings in the litigation on the part of the Secretary of State which the judge details in [26]-[36] of his judgment. It is not necessary to repeat those matters here save to say that I agree with the judge’s criticism at [37]. Similar procedural failings on the part of the Secretary of State occurred in relation to this appeal.[22]JM was released from detention on 25 May 2016.

The relevant statutory provisions

[23]As was common ground recorded by the judge at [61] of his judgment, once the deportation order under section 32(5) of the 2007 Act was made on 11 November 2013 the Secretary of State was required under section 36(2) of that Act to detain JM pending removal:
“unless in the circumstances the Secretary of State thinks it inappropriate”
. As the judge said, that presumptive statutory discretion is nonetheless subject to the implied constraints imposed by the common law, specifically the principles derived from R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 as refined in subsequent case law.[24]As noted at [3] above, JM was an illegal entrant. As Ms Julie Anderson for the Secretary of State emphasised, under section 24 of the Immigration Act 1971 as amended, it is a criminal offence for someone who is not a British citizen knowingly to enter the United Kingdom without leave or, where limited leave to remain has been granted, to remain in the United Kingdom after the period of leave has expired.[25]Section 35 of the 2004 Act, with which this case is principally concerned, provides as follows: “35 Deportation or removal: cooperation(1) The Secretary of State may require a person to take specified action if the Secretary of State thinks that— (a) the action will or may enable a travel document to be obtained by or for the person, and (b) possession of the travel document will facilitate the person's deportation or removal from the United Kingdom.(2) In particular, the Secretary of State may require a person to— (a) provide information or documents to the Secretary of State or to any other person; (b) obtain information or documents; (c) provide biometric information (within the meaning of section 15 of the UK Borders Act 2007), or submit to a process by means of which such information is obtained or recorded; (d) make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom; (e) cooperate with a process designed to enable determination of an application; (f) complete a form accurately and completely; (g) attend an interview and answer questions accurately and completely; (h) make an appointment.(3) A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1)."[26]Subsection 2 (c) originally provided:
"(c) provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye)"
. It was amended by paragraph 5, Schedule 2 of the Immigration Act 2014, with effect from 28th July 2014. Further, section 12 of the Immigration Act 2014 amends the definition of "biometric information" in section 15 of the UK Borders Act 2007, as follows:
"(3) After subsection (1) insert – '(1A) For the purposes of section 5 'biometric information' means – (a) information about a person's external physical characteristics (including in particular fingerprints and features of the iris), and (b) any other information about a person's physical characteristics specified in an order made by the Secretary of State." (1B) An Order under subsection (1A)(b) – (c) may specify only information that can be obtained or recorded by an external examination of a person; (d) must not specify information about a person's DNA.'"
'(1A) For the purposes of section 5 'biometric information' means –

The judgment below

[27]The judge’s conclusion that the Secretary of State could not lawfully require JM under section 35 of the 2004 Act to tell Zimbabwean officials that he agreed to return to Zimbabwe voluntarily was based primarily upon his analysis that, on the correct construction of the section, subsection (2) provided an exhaustive list of the types of action which the Secretary of State could properly require to be undertaken by way of “specified action”. His reasoning is set out at [73] to [77] of the judgment:
“73 Thus, the real point is whether the term "specified action" is solely constrained by sub-paragraphs (a) and (b) of subsection (1), or whether subsection (2) supplies an additional layer of constraint. On this former approach, "in particular" means "by way of example" or something synonymous with "especially" (one of its dictionary definitions). On this latter approach, "in particular" means "specifically" (another of its dictionary definitions). 74 Ms Anderson submitted that "in particular" should bear its natural and ordinary meaning, but in my view that submission does not assist. There are two natural and ordinary meanings of the term. Similar problems arise with prepositions such as "including". In my judgment, the real question which always arises in this sort of case is as to how the term at issue should be construed in its particular context. 75 An examination of the subsection (2) categories throws light on this exercise. Some of these are broad (e.g. sub-paragraph (b), "obtain information and documents"), and would be open to misuse without subsection (1); others are much narrower and more specific. The draftsperson has not included a catch-all category, "such other action as the Secretary of State may reasonably require, in order to fulfil the objects of subsection (1)". In my judgment, subsection (2) has every appearance of being an attempt by Parliament to lay down a list of the types of action which the Secretary of State could properly require to be undertaken, and moreover that this list was intended to be comprehensive. The inference I draw, approaching the exercise of statutory construction on an objective and traditional basis, is that Parliament intended to cover every angle and all possibilities. 76 Parliament has made clear that the Secretary of State's requirements must be intended, at least in her opinion, to achieve one or both of two stated purposes. Had subsection (2) not been enacted, the concern would have been that these purposes are simply too wide and potentially all-embracing in the context of a criminal statute. Thus, Parliament has seen fit to introduce a further layer of regulation, namely the itemisation of categories into which the Secretary of State's requirements must fall. Not merely does the enactment of subsection (2) cut across the submission that it was unnecessary, because subsection (1) would have been sufficient on its own, its presence lends very considerable support to Mr Dunlop's argument that one way or another, it must be fulfilled. If subsection (2) were merely indicative or exemplary, such that it is sufficient for the ingredients of a criminal offence to be made out that the case may be just accommodated within the broad net of subsection (1), the second layer of regulation I have mentioned would be in danger of being undermined. 77 Further, I accept Mr Dunlop's submission that the 2014 amendments to sub-paragraph (c) support his approach to section 35(2) being exhaustive and not illustrative because the type of requirements were incrementally broadened, subject to strict limitations. Not merely would these amendments have been unnecessary on the Defendant's analysis of these provisions, they tend to rebut the proposition that "in particular" introduces a series of illustrations. I appreciate that amendments are sometimes introduced on an avoidance of doubt basis, but in this context more dubiety is created (from the Defendant's perspective) than benefit, if the proposition being tested is the correctness of Ms Anderson's submission. Indeed, on her primary argument, the supremacy of section 35(1), the Secretary of State could lawfully require an individual to provide a sample of DNA notwithstanding that the recent amendments expressly prohibit this.”
[28]The judge went on to find at [78] that the present case could not be brought within subsection 2(d) or (g):
“In my judgment, the instant case cannot be brought within sub-paragraph (d), "make or consent to or co-operate with the making of, an application [etc.]". The Claimant did not oppose the making of an application for an ETD (on these facts, it was made by the Defendant on his behalf), and he participated in it to the extent required by agreeing to be interviewed by a Zimbabwean official. At the moment his interview started, he was consenting to the application. The Defendant's real complaint is that he did not say at interview that he was willing to return to Zimbabwe. The Claimant's actions did not amount to refusing to give consent to the application, particularly in circumstances where the requirement in sub-paragraph (g) is to attend an interview and "answer questions accurately and completely". The Claimant would not be answering the Zimbabwean official's question accurately if he had said that he was willing to return there. Thus, sub-paragraph (g), which precisely fits the circumstances of this case and the Defendant's real complaint, has been complied with by the Claimant. It would be anomalous, in my view, if an individual who is wholly compliant with one provision could be said to be non-compliant with another, in circumstances where the first provision achieves this perfect fit. Put another way, if there were any doubt about the meaning of sub-paragraph (d), (g) is capable of throwing light on the correct construction of the verb "consent to" in that sub-paragraph.”
[29]At [79] and [80] he rejected the argument of Ms Anderson that this case was sufficiently proximate to subsection (2) (d) that it could be accommodated within it. Even in relation to the principle of construction noscitur a sociis, subsection (2) provides an exhaustive list and the instant case is not on the list and the categories in the subsection are too heterogeneous to permit the application of the principle.[30]At [81] and [82], the judge noted that Parliament could, if it had wished, have introduced into subsection (2) a specific category which would have compelled an individual to lie but that would have required clear words such as:
“if asked by an official whether you are willing to return, you must answer in the affirmative”
. The judge also noted that sub-paragraph (g) would have to be dis-applied in relation to that part of the interview alone. As he said:
“This would entail a form of verbal contortion which would likely confound the most adept of Parliamentary draft-persons.”
At [83], he also rejected the analogy Ms Anderson drew with the obligation to provide a breath or blood sample under the Road Traffic Act 1988.[31]The judge went on to conclude that JM had been unlawfully detained between 15 July 2014 and 25 May 2016 (save for the period between 21 April and 6 September 2015 when he was serving a sentence of imprisonment). He set out a detailed analysis of the extent to which JM was an absconding and/or re-offending risk, by reference to the Detention Reviews and other materials, at [44] to [56] of the judgment. In [56] he concluded:
“In my judgment, there was no proper basis for concluding that the absconding risk in the Claimant's case was "high". For the reasons given below, I would assess it as being "medium". Overall, I consider that some of the Defendant's reasoning as betrayed in this documentation, although no doubt given in good faith, is scanty, circular and exaggerated.”
None of the findings of fact he made is challenged on appeal.[32]At [86] to [99] of the judgment, the judge set out the relevant legal principles, in particular the formulation of the four Hardial Singh principles by Lord Dyson JSC in R (Lumba) v SSHD [2012] 1 AC 245 at [22] in these terms:
“(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (ii) the deportee may only be detained for a period that is reasonable in all the circumstances. (iii) 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. (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”
[33]At [88] the judge noted that, although conceptually discrete, the principles may well overlap in their practical application, particularly principles (iii) and (iv). He then addressed the extent to which non-cooperation with return may impact on the absconding risk, by reference to [122] to [128] of the judgment of Lord Dyson JSC in Lumba. At [92] to [94], the judge then summarised the application of the Hardial Singh principles to a case such as the present in these terms: “92 The absconding risk is not decisive either way. The authorities show, and I do not understand this to be disputed, that the higher the absconding risk, the easier it may be for the Defendant to justify detention and its length of time. This is a balancing exercise. However, the saliency of the absconding risk diminishes, in my view, as one notionally proceeds, down a pathway of judicial analysis, from Hardial Singh (ii) to (iii) to (iv); by which I mean that it is more relevant to (ii) than it is to (iv). Further, the absence of an absconding risk does not of itself render detention unlawful: see paragraph 53 of Lord Dyson in Lumba. 93 The ascertainment of breach of any of the Hardial Singh principles warrants a careful and objective judicial assessment (see paragraph 33 of the judgment of Lord Thomas CJ in Fardous v SSHD[2015] EWCA Civ 931), deferring to some extent to the views of the Defendant's officials in their areas of expertise, rather than applying any strict burden and standard of proof (see paragraph 45 of the judgment of McFarlane LJ in R (JS (Sudan)) v SSHD[2013] EWCA Civ 1378). In a case of unaccountable delay, which requires explanation, inferences adverse to the Defendant may be drawn from her failure to file explanatory evidence; but there is no requirement to account for every single day or week of detention (see JS (Sudan), paragraph 60). Although there is no burden of proof, there is a "burden of persuasion" inasmuch as it is for the Secretary of State to justify compliance with the Hardial Singh principles (see R (oao ZA (Iraq)) v SSHD[2015] EWCA Civ 168, paragraph 17; JS (Sudan), paragraph 45). 94 To my mind, Hardial Singh (iii) lies at the heart of this case, although Mr Dunlop's submissions were broader. Ms Anderson placed particular reliance on the judgment of Richards LJ in R (oao Mohammed Muqtaar) v SSHD[2012] EWCA Civ 1270, where he said this at paragraph 36: "… At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR's final decision would be such as to prevent the appellant's removal. I stress "apparent", because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain." At paragraph 37 Richards LJ emphasised that, although the Secretary of State was not required to be in a position to specify or predict the date by which removal could reasonably be expected to occur, the test was: "there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors" (citing from paragraph 65 of his own judgment in R (A), where Toulson LJ had taken the same approach).” "… At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR's final decision would be such as to prevent the appellant's removal. I stress "apparent", because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain."[34]The judge went on to consider the two previous Zimbabwean cases directly on point, the decision of Singh J (as he then was) in Mhlanga v SSHD [2012] EWHC 1587 (Admin) and the decision of Garnham J in Babbage v SSHD [2016] EWHC 148 (Admin). In the latter case, the judge had considered the impact of the settled policy of the Zimbabwean authorities only to accept voluntary returnees, in a case similar to the present of voluntary refusal. Garnham J held that it could not be said that there was a realistic foreseeable prospect of returning the claimant to Zimbabwe. The judge in the present case approved the approach of Garnham J on this issue.[35]Having set out the parties’ rival submissions, he then set out his Analysis and Conclusions at [104] to [134]. At [104], he reiterated the finding he had already made that JM was a medium risk of absconding. At [105] he referred again to the settled policy of the Zimbabwean authorities since 2002 only to accept voluntary returnees and to the fact that JM has never been willing to return to Zimbabwe. At [106] he rejected Ms Anderson’s submission that JM was being deliberately obstructive, describing him as falling into the category of a “voluntary refusnik”. The judge said the present case was covered by [122] to [128] of Lumba, as applied by Garnham J in Babbage, with whose analysis he agreed.[36]At [107], the judge referred to the evidence called on behalf of the Secretary of State from Ms De Souza, Migration Delivery Officer for Southern and Central Africa, as to the possibility of a possible change of political heart by the Zimbabwean government and to the fact that the Secretary of State was awaiting a political decision from Zimbabwe in relation to 18 cases (not including JM). As the judge said, that decision may never come. He concluded that there was no realistic prospect of a change of policy on the part of Zimbabwe during any part of the period germane to these proceedings. There is no appeal against that conclusion.[37]The judge found at [109]-[110] that JM’s likely stance vis-à-vis the Zimbabwean authorities was not examined by the Secretary of State until the interview by immigration officers on 1 October 2014 and that, by the time he signed the disclaimer (referred to at [14] above) on 28 January 2015:
“it was of course crystal-clear on 11 February 2015 [the date of the interview at the Zimbabwean Embassy] that the Claimant was not a voluntary returnee, and applying a probabilistic test to the issue the Defendant knew or ought to have known of this by 28 January 2015, at the latest.”
[38]The judge then ruled that, for the period when JM was imprisoned following his plea of guilty to the Section 35 offence, 21 April to 6 September 2015, he was barred by public policy from advancing a claim for unlawful detention.[39]Having concluded that there was a breach of Hardial Singh (iii) from 28 January 2015, the judge then considered whether the operation of Hardial Singh (iv) would advance that date. He dealt in detail with the chronology of events at [120] to [123] but again it is not necessary to set that out here since there is no appeal against his findings of fact. His conclusion was that if the Secretary of State had acted with reasonable expedition and diligence (which she had not), JM’s position would have been clear by 15 July 2014, the date on which he should, on that hypothesis, have been asked to sign the disclaimer.[40]The judge then went on to consider the unlawful detention case on the alternative hypothesis that his construction of section 35 of the 2004 Act was wrong and that JM could legitimately be required to tell the Zimbabwean authorities that he was willing to return. The judge said at [129] that he still had conceptual difficulty with the suggestion, on the special facts of this case, that section 35 could be legitimately deployed to justify immigration detention. He made the point at [130] that unless JM said that he was willing to return, deportation within a reasonable time would not happen because the problem created by the attitude of the Zimbabwean authorities would remain. Section 35 could not compel him to say he was willing to return, only make him guilty of a criminal offence. The judge noted that JM had been willing to commit the offence and take the consequences.[41]At [131] he agreed that, on this hypothesis, those in breach of section 35 are wilful obstructers which was a relevant factor, but could not begin to justify indefinite detention or multiple use of section 35. At [132] he noted that there might be cases where on the particular facts, it could appear to the Secretary of State that the use of section 35 might secure a practical result. His conclusion on this point was at [133]:
“In my judgment, the issue is not binary or dichotomous. I would agree with Garnham J that section 35 cannot be used to justify detention which would otherwise be unlawful. However, there may be circumstances, in Zimbabwean cases, where it would/could appear to the Secretary of State that the use of section 35 might secure a practical result, namely a change of heart or mind, making deportation within a reasonable time a realistic prospect. That said, this is very much a fact-sensitive exercise, and I would reiterate that any notion that section 35 could be used "as many times as it takes" is so Kafkaesque as to be inimical to the rule of law.”
[42]At [134] he said it was not necessary to make specific findings of fact on this alternative hypothesis, saying that, if his ruling on section 35 was overturned, it would not be difficult for others to make such findings.

The Grounds of Appeal

[43]As noted at [2] above, pursuant to the Order of Underhill LJ on 2 November 2016, more concise Grounds of Appeal were served by the Secretary of State. However, even those run to 14 grounds, with a great deal of overlap. The Grounds were usefully summarised in Ms Anderson’s helpful Speaking Note at the hearing as follows:(1) Ground 1: The judge committed a fundamental error in embarking on a determination of the meaning of a criminal statute and the lawfulness of its use.(2) Grounds 2 to 5: The judge erred in law in his construction of section 35 of the 2004 Act.(3) Grounds 6 and 7: The judge misdirected himself at [78] by accepting JM’s submission that by the section 35 Notice, the Secretary of State was requiring him to lie to an Embassy official, and erred in his application of section 35 to the present case.(4) Grounds 8 to 14: The judge’s finding of unlawful detention was inextricably linked to his wrong construction of section 35 so his decision should be set aside. In addition there were errors in his approach to the application of the Hardial Singh principles in any event.

Ground 1

[44]Ms Anderson’s first Ground of Appeal was that since section 35 was a criminal statute, the judge should not have embarked on the exercise of construction at all, without hearing submissions on behalf of the Director of Public Prosecutions (“the DPP”) and/or the Crown Prosecution Service (“the CPS”), alternatively to the extent that the judge considered the section was ambiguous, he should not have adopted the interpretation he did without taking account of the fact that it was contrary to the approach of the CPS.[45]So far as the suggestion that the judge should not have embarked on the exercise of construction without hearing from the DPP and/or the CPS is concerned, Ms Anderson relied upon the “serious reservations” expressed by the judge at [60] of his judgment in which he said:
“I have serious reservations about a claim for declaratory relief in these circumstances which is designed to clarify the criminal law. One objection is that the DPP is not a party. Another is that the courts are slow to advise those responsible for bringing criminal prosecutions. However, if the focus is limited to the Defendant's notice given on 11th January 2016, and the Claimant's first declaration, the substantive issue is properly addressed. I do not understand Ms Anderson to be contending that this court should not in the exercise of its discretion consider the lawfulness of that notice.”
[46]Ms Anderson said that in her submissions to the judge she had submitted that he should have the views of the DPP and/or the CPS before embarking on this exercise. She referred us to two passages in her Skeleton Argument in the Court below.[47]I agree with what Mr Dunlop says about this in his Skeleton Argument, that the judge’s reservations in [60] were about the alternative claim for a declaration that JM could not be prosecuted under section 35 if he told Zimbabwean officials that he did not agree to return voluntarily (see (ii) at [57] of the judgment). However, the judge did not make that declaration. As the judge himself indicated in the passage in [60] I have just quoted, the first declaration sought, that the Secretary of State may not lawfully require JM under section 35 to tell Zimbabwean officials that he agrees to return voluntarily (which is the declaration the judge actually made) is not open to the same objection. It cannot be said that it seeks to dictate to the prosecuting authorities whether or not to prosecute.[48]On analysis, the declaration which the judge made is limited to consideration of what is the correct construction of the particular statutory provision. The views of the DPP and/or CPS as to the meaning of the section are wholly irrelevant and Ms Anderson was unable to point to any authority to the contrary.[49]Ms Anderson’s alternative submission that the judge should have taken account of the CPS approach to prosecutions under section 35 was equally unmeritorious. In support of this submission Ms Anderson relied upon the decision of the Court of Appeal Criminal Division in R v Tabnak [2007] EWCA Crim 380; [2007] 1 WLR 1317. The issue in that case was whether the Iranian appellant who was refusing to cooperate with the Secretary of State in preparing an ETD because he feared that, if returned to Iran, his freedom or even his life would be at risk, could rely upon the “reasonable excuse” defence in section 35(3). The Court of Appeal concluded that he could not, as that was an explanation for his unwillingness to cooperate, not his inability to do so, with which the subsection was concerned. Ms Anderson relied upon the fact that the Court of Appeal had looked at the CPS guidance to prosecutors in that case.[50]In my judgment, whilst it is correct that the Court of Appeal looked at that guidance, it also looked at the Home Office guidance. In giving the judgment of the Court, Lord Phillips of Worth Matravers MR referred to the two sets of guidance at [13] and then summarised the ruling of the trial

judge at [14] in these terms:

“The judge held that the Home Office guidance reflected the type of matters that were capable in law of constituting "reasonable excuses" for not complying with the requirements of the Secretary of State. He did not accept that the guidance of the Crown Prosecution Service accurately represented the position in law. He held that to allow a defendant to raise issues as to his safety if deported would be to permit him to drive a coach and horses through the object of Parliament in enacting section 35, namely to facilitate the process of deportation. He also held that, while there was an evidential burden on a defendant to raise an excuse, the burden then shifted to the prosecution to prove beyond reasonable doubt that the matters relied on did not constitute a reasonable excuse for not complying with the Secretary of State's requirements.”
[51]Since the Court of Appeal went on to uphold the judge’s ruling for essentially the same reasons, it is difficult to see how that judgment provides any support for the judge in the present case having erred in law by not having regard to CPS guidance which an earlier Court had considered did not represent the law. The correct analysis is that the CPS guidance and the views of the CPS are irrelevant to the issue of construction in the present case.[52]In the original Grounds of Appeal, Ms Anderson had also contended that the judge was wrong not to have considered Hansard in relation to section 35. That point was not pursued in the more concise Grounds served on 28 November 2016, although it was revived in her skeleton Argument and, albeit rather faintly, in her oral submissions before us. I agree with Mr Dunlop that the Pepper v Hart test is not met, but in any event, as he said, if the Secretary of State had thought that it was and that material from Hansard would assist, it was incumbent on her to put such material before the judge, which she did not do.

The parties’ submissions on the construction and application of section 35

[53]Ms Anderson relied upon R v Tabnak in relation to the statutory purpose of section 35. As I have already said, the Court of Appeal in that case concluded that the appellant could not rely upon the “reasonable excuse” defence in section 35(3), because the subsection was concerned with inability, not unwillingness. The Court set out its conclusion on the object of the section at [21]:
“21 The reason why the context in which the phrase "reasonable excuse" is used in section 35 has led us to the conclusion that we have just expressed hardly needs stating. Section 35 is concerned solely with the practical requirements of deportation. The object of the section is to facilitate compliance with those requirements. Compliance with those requirements will not, of themselves, entitle the Secretary of State to deport a person. Section 35 does not provide the battleground for determining whether deportation is legitimate. The legislation makes ample provision for determining that question. To permit a defendant to raise, by way of a defence to section 35, issues that fall properly to be determined in accordance with the legislation by specialist adjudicators or judges, now the Asylum and Immigration Tribunal, would in practice make a prosecution under that section unworkable.”
[54]Ms Anderson relied upon this statement of the statutory purpose, which was not really in dispute. In relation to the statutory purpose of section 35(1) and (2), she submitted that subsection (1) gave the Secretary of State the power to specify action to be undertaken by the individual, which did not require that she had a reasonable belief that what she specified would work in terms of procuring the relevant ETD. Ms Anderson pointed out that, where a deportation order was made, the law gave the individual no choice about returning. The individual could be required as a matter of law to consent to something he or she did not want to do.[55]Ms Anderson’s primary submission on the issue of construction was that the judge had been wrong to conclude that the list in section 35(2) was exhaustive. The words “In particular” at the outset of subsection (2) were adjectival, meaning “by way of example”, not “specifically” as the judge held. She submitted that, contrary to the submissions of Mr Dunlop, the judge’s construction of “in particular” was not supported by the decision of the Court of Appeal in SH (Palestinian Territories) v SSHD [2008] EWCA Civ 1150.[56]That case concerned paragraph 5 of the Refugee or Persons in Need of International Protection (Qualification) Regulations 2006 which implemented in the United Kingdom the Council Directive 2004/83/EC. Paragraph 5 of the Regulations provided, so far as presently relevant:
“Acts of persecution (1) In deciding whether a person is a refugee an act of persecution must be; (a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified (a)…”
[57]The Court of Appeal accepted the submissions of counsel for the Secretary of State that in the context of that case “in particular” was used in a definitional sense to explain exhaustively the meaning of “basic human right”. At [43] and [44] of the lead judgment, Scott Baker LJ set out the rival arguments in these terms: “43. Mr Johnson's submission is that the words inparticular in para 5(1) (a) of the 2006 Regulations are used in a definitional sense to explain exhaustively the meaning of "basic human right." His argument can be summarised as follows: i) The purpose of Article 9 of the Directive is to achieve consistency of approach between Member States to the definition of persecution; ii) If the words in particular are intended to mean forexample it leaves open the question what other rights are "basic human rights" within the meaning of Article 9 (1)(a). That would do little to achieve consistency of approach; iii) A distinction is plainly intended between "basic human rights" in Article 9(1) (a) and (Human Rights) in Article 9(1) (b). Unless "basic human rights" correspond precisely to non-derogable rights under Article 15 of the ECHR not only is there the open question in (ii) above but there is also a blurring of distinction between "human rights" and "basic human rights"; iv) The words in particular in Article 9(1) (a) are to be contrasted with inter alia in Article 9(2). If in particular had been intended to mean for example then there would not have been any reason for this distinction. The phrase inter alia would have been used rather than in particular. Precisely the same point can be made about the use of the expression in particular in Regulation 5(1) (a) and for example in Regulation 5(2). 44. The alternative construction, which is supported by Jane McAdam in an article in the International Journal of Refugee Law [2005] 461 at 516 is that the words in particular are non- exhaustive so that other basic human rights beyond those in Article 15 of the ECHR might be applicable. She argues that: "….provisions that incorporate the term in particular indicate that elements of the provision are not exhaustive, thus allowing Member States to take into account additional aspects in their national laws." I cannot accept this for the reasons advanced by Mr Johnson.” i) The purpose of Article 9 of the Directive is to achieve consistency of approach between Member States to the definition of persecution; ii) If the words in particular are intended to mean forexample it leaves open the question what other rights are "basic human rights" within the meaning of Article 9 (1)(a). That would do little to achieve consistency of approach; iii) A distinction is plainly intended between "basic human rights" in Article 9(1) (a) and (Human Rights) in Article 9(1) (b). Unless "basic human rights" correspond precisely to non-derogable rights under Article 15 of the ECHR not only is there the open question in (ii) above but there is also a blurring of distinction between "human rights" and "basic human rights"; iv) The words in particular in Article 9(1) (a) are to be contrasted with inter alia in Article 9(2). If in particular had been intended to mean for example then there would not have been any reason for this distinction. The phrase inter alia would have been used rather than in particular. Precisely the same point can be made about the use of the expression in particular in Regulation 5(1) (a) and for example in Regulation 5(2). "….provisions that incorporate the term in particular indicate that elements of the provision are not exhaustive, thus allowing Member States to take into account additional aspects in their national laws."[58]Ms Anderson submitted that the context in which “in particular” was used in that case was completely different from the current context, which set out a statutory power in subsection (1) and then provided a non-exhaustive list of particular instances where the power could be used in subsection (2). Furthermore in the context of this statute, the words “in particular” were used nineteen times in the 2004 Act, in all the other instances by way of example not in an exhaustive sense.[59]She submitted that the judge had been wrong to conclude at [74] of the judgment that the words “in particular” were ambiguous in the sense that they could bear two natural and ordinary meanings. In any event, she submitted that the judge had chosen the wrong meaning and had failed to look at the statutory purpose. She also relied upon the Explanatory Note to the 2004 Act which stated at [164]:
“The section sets out the type of steps the Secretary of State may require someone to take, but these are not meant to be exhaustive.”
[60]She also submitted that the judge had been wrong to conclude that the change to subsection 2(c) supported Mr Dunlop’s construction. The provision of DNA could have fallen within “specified action” in subsection (1) so there was utility in effectively provided for its exclusion under the replacement 2(c).[61]Even if subsection (2) was exhaustive, she submitted that the judge erred in concluding that consent to return was not within subsection 2(d). That had to be read with subsection (1). More was required than consent to or cooperation with an invalid application. The application had to have some content to it, not just be an empty form as it was in this case on the judge’s construction of (d).[62]In relation to the application of section 35 in the present case, Ms Anderson submitted that, even on the judge’s construction of the section, he had misdirected himself in concluding that the Secretary of State was requiring JM to lie to an Embassy official. She submitted that, as the two section 35 Notices indicated, the Secretary of State was seeking consent or agreement and was not seeking to dictate that JM should use any particular wording to Zimbabwean officials. She said it was not the Secretary of State’s position that JM had to lie. Furthermore, when the Court put to Ms Anderson that it could be said that by saying: “I don’t want to return, but I will if I have to”, JM was giving his consent or agreement, she was constrained to accept that the Court could well interpret what he said as sufficient.[63]However, what was clear when Ms Anderson was pressed by the Court was that she was not in a position to say that the Zimbabwean authorities had ever been prepared to issue an ETD in respect of someone like JM who said “I don’t want to return but I will if I have to”. I agree with Mr Dunlop that there is no evidence to that effect and the burden to produce such evidence would be on the Secretary of State.[64]Mr Dunlop’s primary submission, as before the judge, was that subsection (2) provided an exhaustive list and that the judge’s reasoning on this issue was correct. He submitted that Parliament had used “in particular” in this statute in the same way as in the 2006 Regulations considered in SH (Palestinian Territories) to mean “specifically”. He submitted that the broad nature of the categories in subsection (2) and the absence of any “catch-all” provision in the sub-section was a further indication that the list was intended to be exhaustive.[65]Mr Dunlop emphasised that section 35 was a penal provision, the importance of which was twofold:(i) the need for legal certainty and(ii) the presumption against doubtful penalisation. So far as the first of those principles is concerned, he submitted that if the Secretary of State’s construction were correct, subsection (2) would effectively be otiose, since under subsection (1) she would be entitled to specify whatever action she chose, irrespective of whether it fell within subsection (2). He submitted that only the opposite construction, that the list in subsection (2) was exhaustive, provided legal certainty. On that basis, the individual could not be faced with ambiguous words as to the action to be taken, such as “agree” or “consent”, since all that the individual in the position of JM could be required to do under sub-paragraph (g) is to answer questions accurately and completely at an interview.[66]In relation to the presumption against doubtful penalisation, Mr Dunlop relied upon the judgment of the Court of Appeal Criminal Division in R v Dowds [2012] EWCA Crim 281; [2012] 1 WLR 2576 given by Hughes LJ (as he then was) for an authoritative statement of the applicable principles at [36]-[37]:
“36. Having sought the assistance of counsel on the topic, we have also given consideration to whether Miss O'Neill's reading of the statute is required by the canon of statutory construction usually labelled the principle against doubtful criminality or doubtful penalisation. This is generally stated to mean that, in the words of Lord Reid in Sweet v Parsley[1970] AC 132: "…it is a universal principle that if a penal provision is reasonably capable of two interpretations that which is most favourable to the accused must be adopted." The rationale of that principle has often been stated. It is justified by the requirement to give fair warning to citizens of which conduct may attract punishment. Individuals ought not to be left to guess at what they can or cannot do without infringing the criminal law and subjecting themselves to punishment: see for example Sweet v Parsley per Lord Diplock at 163C, where he referred to it being contrary to principle to assume that Parliament intended to penalise one who has performed his duty as a citizen to ascertain what acts are prohibited by law and has taken all proper care to inform himself of any facts which would make his conduct unlawful. The same basis for decision was relied upon in the context of Article 7 ECHR inKokkinakas v Greece(1994) 17 EHRR 397. 37. Miss O'Neill conceded that strict construction of a criminal statute may give way to other principles of interpretation, especially to the clear mischief which the Act was designed to remedy, and indeed is a canon of 'last resort'. That expression derives from a single remark of Lord Steyn in R (Junttan Oy) v Bristol Magistrates Court[2003] UKHL 55 at [84], citing Cross on Statutory Interpretation, although in that case there were many other grounds for the decision. There are many examples in the books of the mischief rule of construction prevailing, of which R v JTM[2009] 2 Cr App R 13 at 189; [2009] UKHL 20 is a striking example.”
Whilst accepting that this was a canon of last resort, Mr Dunlop submitted that it gave support to his construction, which gave legal certainty. "…it is a universal principle that if a penal provision is reasonably capable of two interpretations that which is most favourable to the accused must be adopted."[67]Mr Dunlop submitted that the judge’s interpretation at [72] of the judgment as to what was meant by “specified action” was correct: “specified” meant that the Secretary of State would specify the detailed way in which the required action fell within one of the sub-paragraphs of (2), for example, which day the individual should turn up at the Embassy and with which documents. He also submitted that Ms Anderson was wrong in her submission that JM’s construction deprived subsection (1) of any purpose. Its purpose is to limit the circumstances in which the Secretary of State could require something to be done under subsection (2).[68]Mr Dunlop also submitted in his Skeleton Argument that the Secretary of State’s construction would override the purpose of the amendment to sub-paragraph (c), as it would mean that she could require an individual to submit to having his or her DNA taken. However that point may be of less significance in the light of Ms Anderson’s acceptance (referred to at [59] above) that the new sub-paragraph would preclude the taking of DNA.[69]Mr Dunlop submitted that, on the basis that the list in (2) was exhaustive, Ms Anderson’s submission that JM had not complied with subsection (2) (d) was incorrect. He submitted that Ms Anderson’s contention that (d) must be read as requiring the individual as needing to do whatever it takes to make the application for an ETD successful, otherwise it would not be a valid application, was inconsistent with her concession that JM could not be required to lie, given that it was clear in this case that that was what was necessary to make the application successful. He submitted that all that (d) required was consent or cooperation in the making of a valid application. The individual was not guaranteeing that the application would be successful.[70]Mr Dunlop’s fall-back position was that, even if the judge had erred in his construction of section 35, it was not necessary to set aside the declaration he made. Given the case of the Secretary of State as clarified by Ms Anderson during her submissions, he submitted that she accepted that JM cannot be required to agree to return to Zimbabwe voluntarily, in which case there was nothing wrong with the declaration the judge made.

Analysis and conclusions on section 35

[71]Despite the attractiveness of the submissions advanced by Mr Dunlop, I cannot accept that subsection (2) provides an exhaustive list. The natural and ordinary meaning of the words “in particular” is “especially” or “by way of example” which does not connote exclusivity. Even the alternative meaning which the judge preferred at [73] of his judgment of “specifically” does not seem to me to connote exclusivity, but to be highlighting particular examples.[72]In my judgment, the decision of the Court of Appeal in SH (Palestinian Territories) does not support the argument that the list in subsection (2) is exhaustive. The Regulations being considered there were implementing a Council Directive and the exhaustive, definitional meaning given to “in particular” in that context was clearly influenced by the purpose of the Directive. The context was not as in the present case the giving of a power and then the enumeration of a number of examples of how it can be exercised.[73]Nonetheless, the construction favoured by the Secretary of State, to the effect that the scope of the power given to the Secretary of State to require someone to take “specified action” is only limited by subsection (1) (a) and (b) and not by subsection (2), also seems to me to be incorrect. There is considerable force in the point made by Mr Dunlop that this construction effectively renders subsection (2) otiose, which is unlikely to have been the intention of Parliament.[74]However, as Underhill LJ pointed out during the course of argument, there is a halfway house between the two extremes advocated by the parties. The section follows a commonly used Parliamentary drafting technique of granting a general power in subsection (1), albeit subject to (a) and (b), then specifying in subsection (2) the principal areas in which that power will be exercised. When a particular area in which the power can be used is specified and given express or implied limitations, then the Secretary of State cannot use the general power to undermine the limitations of the specific. In my judgment, that is the correct construction of section 35. It is an example of the application of the principle of construction generalia specialibus non derogant (general provisions do not override specific ones): see Bennion on Statutory Interpretation 6th edition page 1039.[75]Mr Dunlop indicated that, if he were wrong in his principal submission that subsection (2) was exhaustive, then the judge’s overall conclusion that the Secretary of State cannot lawfully require JM under section 35 to tell Zimbabwean officials that he agrees to return voluntarily to Zimbabwe is still correct, because the principle that general provisions do not override specific ones applies. I was unimpressed by Ms Anderson’s attempt to shut out this construction by arguing that Mr Dunlop had not put in a Respondent’s Notice. In a case where the Court of Appeal is seeking to establish the correct construction of a statute or a contract, that sort of formalistic approach does not assist.[76]Given that, in my judgment, the correct construction of section 35 is that the power given in subsection (1) is subject to the limitations within subsection (2) in respect of the specific areas of exercise of the power there enumerated, Mr Dunlop should be free to argue for that construction and this Court should be entitled to conclude that that is the correct construction of the statute. Furthermore, it seems to me that Ms Anderson’s answer (referred to at [60] above) to Mr Dunlop’s reliance on the change to subsection (2) (c), that the new subsection would preclude the Secretary of State from insisting that an individual provide a DNA sample, is an implicit recognition that the principle that general provisions do not override specific ones applies here.[77]In practice, what the application of that principle means in the present case is that the Secretary of State cannot require JM to tell Zimbabwean officials that he is willing to return to Zimbabwe when he is not, since that would be requiring him to do something which was inconsistent with the specific provision in (2) (g):
“to attend an interview and answer questions accurately and completely”
. He would be being required to answer that specific question as to his willingness to return inaccurately or incompletely.[78]I was unconvinced by Ms Anderson’s attempt to avoid the conclusion that the effect of the section 35 Notices was that the Secretary of State was requiring JM to lie to the Zimbabwean officials. She sought to argue that all that the Secretary of State was requiring JM to do was: "to give your consent to return to Zimbabwe if requested to do so by an Embassy official" (Notice of 4 February 2015) or “agree to return to Zimbabwe if asked as part of the requirements for re-documentation, by Embassy official” (Notice of 11 January 2016). However, in the present context, where the Secretary of State was well aware, from 28 January 2015 (when JM refused to sign the disclaimer) at the latest, as the judge found, that JM was not willing to return to Zimbabwe voluntarily, words in the Notices such as “consent” or “agreement” are inherently ambiguous.[79]Either they were requiring JM to tell the Zimbabwean authorities that he was willing to return, which would not have been true or, if, as Ms Anderson insisted, the Secretary of State was not requiring JM to lie, then what he actually said to the Zimbabwean official at the interview on 11 February 2015, that he wasn’t willing to go back to Zimbabwe but would if he had to, was as far as the Secretary of State could require him to go, as Ms Anderson came close to accepting during the course of argument.[80]However, since the Secretary of State knew or must be taken to have known that saying something along those lines would not satisfy the Zimbabwean voluntary returns policy and, accordingly, the Zimbabwean authorities would not issue an ETD, the inevitable conclusion is that, by requiring JM in the Notices to give his consent or agreement, the Secretary of State was requiring JM to lie to the Zimbabwean officials. In those circumstances, the Secretary of State was requiring him to do something which was inconsistent with subsection (2) (d), which she could not lawfully do.[81]Furthermore, the Secretary of State obtains no assistance from subsection (2) (d). Mr Dunlop is right that consenting to or cooperating with an application to the Zimbabwean authorities does not involve JM guaranteeing that that application will be successful. The judge was right to conclude at [78] of his judgment that, at the moment the interview started at the Embassy, JM was consenting to the application. In any event, even if Ms Anderson were right that (d) has the wider meaning for which she contends, the Secretary of State was still requiring JM to lie to the Zimbabwean authorities, which is contrary to (g) and which she therefore could not lawfully require him to do.[82]Accordingly, albeit through the application of the principle of construction that general provisions do not override specific ones rather than the adoption of the construction found by the judge that subsection (2) is an exhaustive list, I consider that the judge’s conclusion, that the Secretary of State could not lawfully under section 35 require JM to tell Zimbabwean officials that he agrees to return voluntarily, was correct and the judge was right to grant a declaration to that effect.

Unlawful detention

[83]Given that conclusion in relation to section 35, the principal basis for the appeal by the Secretary of State against the judge’s finding of unlawful detention, that his finding was infected by his incorrect conclusion in relation to section 35, must fail and it is not necessary to discuss it further. Nonetheless, Ms Anderson maintained her other criticisms of the application by the judge of the Hardial Singh principles.[84]Although in the Grounds of Appeal, Ms Anderson contended that the judge did not make his own independent assessment in applying the Hardial Singh principles, I agree with Mr Dunlop that this criticism is completely misconceived. Consideration of this section of the judgment demonstrates that the judge not only correctly stated the law, but applied it to the facts carefully and conscientiously. In those circumstances, the Court of Appeal should be reluctant to interfere. The correct approach to be adopted by this Court is set out by Richards LJ in R (Muqtaar) v SSHD [2012] EWCA Civ 1270; [2013] 1 WLR 649 at [46]: “I have taken the view that the conclusion reached by the deputy judge on each of the issues considered above deserves considerable respect, given that he directed himself correctly on the law and undertook the task of applying the law to the facts in an obviously careful and conscientious manner. At para 7 of the judgment of the court in the Abdi case, Sedley LJ pointed out that the concepts of "reasonable period" and "in all the circumstances" are open-ended and describe "a large area of judgment to be made in each case that comes before the court". He said at para 62: "The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts". In similar vein, Longmore LJ observed in R (MH) v SSHD [2010] EWCA Civ 1112at para 73 that judges "have to make a judgment taking a range of (often competing) factors into account", but that "once a judge has done that, it will be a rare case in which it would be right for this court to interfere". I agree with those observations, which in my view represent the correct approach of an appellate court to cases involving the application of Hardial Singh principles.” "The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts".[85]In her oral submissions Ms Anderson focussed on the criticism that the judge was wrong to conclude that JM had not been deliberately obstructive in refusing to agree to return to Zimbabwe voluntarily. She submitted that, applying the approach of Toulson LJ (with whom Longmore LJ agreed) in R (A) v SSHD [2007] EWCA Civ 804 at [54], the judge should have concluded that this was a very important factor, which was not only evidence of the risk of absconding, but which meant that a longer period of detention could be regarded as justified and reasonable in applying Hardial Singh principles (ii) and (iii).[86]This led to the riposte from Mr Dunlop that the approach of the majority of the Court of Appeal in A had been disapproved by Lord Dyson JSC in R (Lumba) v SSHD [2011] UKSC 12; [2012] 1 AC 245 at [128], in preference for the minority view of Keene LJ in A and the judgment of Simon Brown LJ in the earlier case of R (I) v SSHD [2002] EWCA Civ 888; [2003] INLR 196, to the effect that the refusal to return voluntarily, in cases where the risk of absconding cannot be inferred from that refusal, is of limited relevance and cannot be used to justify a period of detention which would otherwise be unreasonable and unlawful.[87]It seems to me that there is considerable force in Mr Dunlop’s point that, after [128] of Lumba, a refusal to return voluntarily is of less weight than was ascribed to it by Toulson and Longmore LJJ in A. However, it is not necessary on the facts of this case finally to resolve that issue. Given that the judge was right to conclude that the Secretary of State could not lawfully require JM to tell the Zimbabwean authorities that he would return voluntarily, JM’s refusal to do so simply cannot be characterised as deliberately obstructive.[88]In any event, the extent and seriousness of any obstruction will vary from case to case. I consider that the analysis of Picken J in R (Ramathani) v SSHD [2015] EWHC 2079 (QB) at [86], that there is a spectrum onto which cases fall, has much to commend it:
“I obviously acknowledge that every case will depend ultimately on its own facts. Different cases will fall in different places along what is clearly a spectrum. Every case will entail obstruction since it will only be where somebody is refusing to do what the Secretary of State would like that person to do, which is leave the country, that the 'administrative' detention powers need to be used at all. However, there is a qualitative difference between merely refusing to leave, on the one hand, and 'active' behaviour entailing the kind of behaviour seen in R (Amougou-Mbarga), on the other. These are cases at some distance apart from each other on the spectrum, and it is obviously right that there should be a different amount of weight attributed to them in view of their differences. It does not follow, however, that the same weight should be given to the range of different cases which are likely to fall in different places along the spectrum. As Lord Dyson demonstrated in R (Lumba) itself, there is, for example, a difference between a 'passive' case of a person refusing to leave voluntarily who makes a legal challenge and a 'passive' case where there is no such legal challenge. In the former scenario, the refusal to leave voluntarily is unlikely to be relevant, whereas in the latter case it will have more weight, albeit still only limited weight. Similarly, as I see it, if the case is a 'passive' case of the sort identified by Lord Dyson at (i) in R (Lumba) at [122], it is likely that more weight will be afforded to the behaviour concerned than if it is a 'passive' case of the sort identified by him in his category (ii). Again, however, it will depend on the facts of the particular case because not all cases will be the same even within the various categories. There may be aggravating features and there might, equally, be mitigating aspects. Some conduct may also be a mixture of the 'passive' and the 'active', perhaps depending on over what period of time a person's behaviour is being considered. I do not accept that Mr Chirico can be right when he submitted that, as he put it, the "only conceptual difference" is as between the 'passive' and the 'active'. It seems to me that this represents far too sweeping an approach, and that any assessment has to be rather more subtle and nuanced. It follows that I cannot accept Mr Chirico's submission that only limited weight should ever be given to 'passive' behaviour of whatever type, and specifically that limited weight should be attributed to the conduct identified by Lord Dyson in both (i) and (ii) at [122] inR (Lumba).”
[89]Given that the Secretary of State could not lawfully require JM to tell the Zimbabwean authorities that he agreed to return voluntarily, his refusal to do so, even if it could be characterised as obstruction, must be at the lower end of the spectrum, given that, as the judge found, he cooperated other than in that refusal to agree to return voluntarily. In my judgment, the judge was right to conclude at [110] in applying Hardial Singh principle (iii) that, by 28 January 2015, when JM refused to sign the disclaimer, it was crystal clear that he was not a voluntary returnee, so that the Secretary of State would not be able to effect deportation within a reasonable period. Applying Hardial Singh principle (iii), continued detention thereafter was unreasonable and unlawful.[90]In her oral submissions, Ms Anderson also criticised the judge for having considered Hardial Singh principle (iii) before he considered principle (ii) and, indeed, for having not really considered principle (ii) at all. She submitted that the Court could not properly consider principle (iii) until it had determined the length of the reasonable period for the purposes of principle (ii). That submission is simply misconceived. In Lumba at [103], Lord Dyson JSC said that: “A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place”, which is of course a questioninvolving the application of Hardial Singh principle (iii).[91]This approach was echoed by the Court of Appeal in R (Khalid) v SSHD [2012] EWCA Civ 1656 at [30] of the judgment of Hughes LJ, where having set out the four Hardial Singh principles as restated by Lord Dyson in Lumba, he said:
“In effect the questions are probably best approached in the order (i), (iii), (iv) and, once those are answered, (ii).”
In the present case, once the judge had decided that principle (iii) was breached, what the reasonable period would have been within principle (ii) if it had not been breached, was essentially academic. There is no basis for criticising the judge’s approach.[92]In her Skeleton Argument, Ms Anderson criticised the judge’s analysis in [94] and [95] of the judgment that the Secretary of State could derive limited assistance from [36] of the judgment of Richards LJ in R (Muqtaar) v SSHD [2012] EWCA Civ 1270, submitting that the judge had reversed the effect of Muqtaar. I agree with Mr Dunlop that this point is unmeritorious. That paragraph of the judgment of Richards LJ was saying no more than “mere uncertainty” would not found a claim for unlawful detention under Hardial Singh principle (iii). The judge did not misstate that point at [95] of his judgment, but, in any event, as he found, this was not a case of “mere uncertainty” but one where it was “crystal clear” that JM would not be removed within a reasonable period of time (see [110]).[93]Although the Secretary of State does not challenge the judge’s findings of fact in applying Hardial Singh principle (iv), that she failed to act with reasonable expedition and diligence, in the Grounds and in Ms Anderson’s Skeleton Argument, it is argued that the judge erred in concluding that that failure was causative. This point was not developed orally, but as Mr Dunlop says in his Skeleton Argument, the answer to it is that it misunderstands the issue of causation. The question for the Court was not whether JM would have consented to removal seven months earlier if the Secretary of State had acted with reasonable expedition and diligence, as [64] of Ms Anderson’s Skeleton Argument appears to assume. The correct question was whether, if the Secretary of State had acted with reasonable expedition and diligence and had presented JM with the disclaimer seven months earlier, it would have become apparent seven months earlier that removal would not be possible within a reasonable period of time. The judge addressed that question at [123] of his judgment and answered it affirmatively, a finding of fact which cannot be challenged on this appeal.[94]Although the Grounds asserted that the judge erred in law in concluding that substantial rather than nominal damages should be awarded for the unlawful detention which he found, no separate reasoned challenge to that conclusion was advanced beyond the other criticisms. As I have held, there is nothing in any of the criticisms levelled by the Secretary of State at the judge’s application of the Hardial Singh principles to the facts of this case.

Conclusion

[95]The correct construction of section 35 of the 2004 Act is that the Secretary of State cannot lawfully require JM to tell Zimbabwean officials that he agrees to return voluntarily because that is seeking to use the general power in subsection (1) in a manner which is inconsistent with and contradicts the specific limitation in subsection (2) (g), under which JM can only be required to answer questions in interview accurately and completely. Therefore, albeit adopting a different construction of the section to that favoured by the judge, I consider that his overall conclusion that the Secretary of State cannot lawfully require JM to tell Zimbabwean officials that he agrees to return voluntarily was correct and that he was right to grant a declaration to that effect.[96]In those circumstances, the principal criticism of the Secretary of State of the judge’s conclusion on unlawful detention, that his reasoning was infected by his erroneous approach to section 35, must fail. There is nothing in any of the other criticisms levelled at the judge’s application of the Hardial Singh principles. His conclusion that JM was unlawfully detained between 15 July 2014 and 25 May 2016 (save for the period between 21 April and 6 September 2015, when he was serving a sentence of imprisonment) is correct, as is his conclusion that this is a case which warrants an award of substantial damages.[97]In the circumstances, the appeal must be dismissed.[98]I agree.[99]I also agree.

Cited in 1 later judgment