Ararso v The Secretary of State for the Home Department [2018] EWCA Civ 845

[2018] EWCA Civ 845Case No C4/2015/3249
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS' BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE KERR
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/04/2018
Before
LORD JUSTICE DAVISLORD JUSTICE UNDERHILLLORD JUSTICE LINDBLOM
Between
GADISA ARARSORespondent/ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant/
Alan Payne (instructed by the Government Legal Department) for AppellantHugh Southey QC and Philip Nathan (instructed by Duncan Lewis Solicitors) for RespondentHearing Hearing date: March 8 2018
Judgment Approved

Introduction

[1]This appeal relates to the detention by the appellant Secretary of State of the respondent (“GA”) pending his proposed removal under the Dublin II Regulation (as then applicable) to Malta. GA was detained on 28 August 2014. He was released on 7 November 2014. His case was and is that the entire period of his detention was unlawful. The Secretary of State’s case was and is that the entire period of his detention was lawful. In the event, the trial judge, Kerr J, ruled by reserved decision handed down on 9 September 2015 that the detention was unlawful between 16 September 2014 and 7 November 2014. Damages were ordered to be assessed. That assessment has, by reason of this appeal, not yet been made.[2]The Secretary of State, with leave granted by Gross LJ on 12 April 2016, appeals against that decision. GA, by like leave, cross-appeals. So far as I can see, the appeal and cross-appeal raise no particular point of law or principle; but they do require a close consideration of the – in some respects, somewhat unusual – circumstances of the case.[3]In addition, there is also before the court an application concerning the costs of other aspects of the proceedings, in the light of the Secretary of State’s subsequent decision, after the judgment of Kerr J, to withdraw the removal directions set for GA and to consider his asylum claim.

Factual and Procedural Background

[4]The background facts relating to GA are very fully and well set out in the judgment below: see [2015] EWHC 2511 (Admin). In such circumstances, only a relatively brief summary is needcd here.[5]GA is a national of Ethiopia, of Oromo descent, born on 19 July 1988. He entered the United Kingdom on around 13 January 2012. He applied for asylum. A Eurodac check revealed that he had been fingerprinted in Malta on 19 September 2008. When interviewed, he said that he left Ethiopia in 2007. He said that he arrived in Malta by boat, travelling from Libya. He initially said that he had claimed asylum in Malta; although subsequently he was to deny that. In due course he was released, as he said, from detention in Malta and went from there to Italy, then to France and thence to the United Kingdom. He said that he had fled Ethiopia because of his support for the Oromo Liberation Front.[6]On 31 January 2012 the Maltese authorities accepted responsibility for GA’s asylum claim under Dublin II. On 1 February 2012 the Secretary of State issued a third country certificate; and removal directions were set for 14 February 2012. On 11 February 2012 GA commenced judicial review proceedings. The principal grounds of challenge raised were by reference to the conditions which asylum seekers in Malta faced. Those proceedings were then joined with other proceedings brought by various other claimants facing prospective removal under Dublin II to Malta.[7]The matter came before Mitting J. By decision dated 1 February 2013 he dismissed the claim. Among other things, he rejected as untrue GA’s claim that he had not in fact claimed asylum in Malta. He rejected the various arguments raised by reference to Article 3 and the asserted risk of refoulement. He upheld the certification in each case and ruled that there was nothing to prevent the removal of the claimants to Malta.[8]The claimants, including GA, sought to appeal. Permission to appeal was refused on the papers by Beatson LJ on 22 July 2013. The claimants, as was then their right, sought to renew the application for permission to an oral hearing. The Secretary of State had in the meantime indicated an intention to remove; and an urgent application for a stay, pending the oral hearing of the renewed application, was made. This was decided on the papers by Patten LJ on 29 August 2013. He granted the stay. His written reasons were these:
“The applicant has a right to renew his application for permission to appeal at an oral hearing which is fixed for 6 November 2013 which should not be frustrated by his removal in the meantime.”
[9]The renewed application came on for hearing, in the event on 4 December 2013, before Aikens LJ. The claimants and the Secretary of State were both legally represented. By this stage the claimants were seeking to pursue an argument, not raised before Mitting J, based on Article 18 of the Charter of Fundamental Rights of the European Union. The Secretary of State was disputing the entitlement to raise such an issue at that stage, as well as the validity of the argument. Aikens LJ, in a brief ex tempore judgment, stated his conclusion that the issues raised “do need to be argued out properly in this court”. He did not himself, however, grant permission to appeal, stressing that the matter had not been raised below. He referred the renewed application for permission to appeal to the Full Court and “if necessary and appropriate the appeal will be argued at the same time.” A “rolled-up” hearing was thus in due course fixed for 17 and 18 June 2014. The stays were in the interim continued.[10]In the event that hearing never took place. On 30 May 2014 the Secretary of State informed the claimants that the certification of their claims was withdrawn. A detailed consent order was lodged and, after certain refinements, made by Rimer LJ on 23 June 2014.[11]The terms of that consent order have loomed large in argument before us. The substantive part of the order provided for withdrawal of the applications for permission to appeal and the lifting of the stays of removal, with other consequential matters also addressed (including as to costs). However the order also included a number of detailed undertakings. Amongst other things, the Secretary of State undertook to consider any further materials lodged by the claimants in respect of their human rights claims. The undertakings also included the following:
“AND UPON the Respondent agreeing, after any subsequent human rights certificates have been served, to provide the Appellants with a minimum of 5 working days’ notice of any removal; AND UPON the Respondent agreeing, before taking any further decisions to detain and remove, to take into account that Patten and Aikens LJJ previously saw sufficient merit in the appeals to order stays of removal pending final determination of these applications; AND UPON the Respondent agreeing, in the event that the appellants issue Judicial Review proceedings challenging the asylum certificates and/or any human rights certificates, not to remove the Appellants pending the determination of permission on the papers.”
[12]It can be seen, therefore, that among other things the consent order contemplated that, after reconsideration, the Secretary of State was still free to certify and set removal directions. GA’s claim was then reconsidered. By a lengthy decision letter dated 11 August 2014 the same conclusion as before was reached by the Secretary of State. It was stated that the materials and arguments put forward “do not come close to rebutting the presumption that Malta will treat him in compliance with the requirements of the EU Charter, the Geneva Convention and the ECHR.” The claim under Article 3 was specifically refused. In addition, a previous request that GA’s reporting restrictions be varied from weekly to monthly was rejected.[13]The decision letter had included a summary of the immigration history of GA. That recital of the immigration history included the following:
“On 30 [sic] August 2013 the Court of Appeal granted an injunction against removal until after determination of the application for permission. Your client renewed his application for permission to appeal to an oral hearing fixed for 6 November 2013. On 23 June 2014 this barrier was concluded [sic]…”
[14]The decision letter also certified GA’s human rights claims as clearly unfounded and stated an intention to remove him to Malta.[15]Thereafter GA was detained on 28 August 2014 with a view to his removal to Malta.[16]On 29 August 2014 a lengthy pre-action protocol letter challenging the decision to certify and requesting temporary admission was sent by solicitors acting on behalf of GA to the Secretary of State. Amongst other things, the letter referred to (and expressly quoted) the undertakings contained in the consent order of 23 June 2014. It was also submitted that GA’s claim, including by reference to Article 18 of the Charter, had not been adequately considered. In its concluding paragraphs, under the heading “Remedy Sought”, the letter said this:
“We request that the R withdraw the certification of our client’s human rights claim, in addition to ensuring that the asylum claim of our client is determined within the United Kingdom. In the event that we do not receive a satisfactory response from the R within 14 days, we will issue a claim for Judicial Review on the basis that the decision of the R to certify the human rights claim of our client, in addition to the intention of the R to remove our client to Malta pursuant to the Dublin II Regulation, is unlawful and/or irrational. Further, we request that the R disclose all information pertaining to the process by which she came to her decision of 11 August 2014. This is required in order to ascertain whether the process by which this decision was reached was entirely compliant with the abovementioned Consent Order, as per the observations of Aikens LJ. Finally, it is requested that the A be released from detention, so as to ensure compliance with the Consent Order of 23 June 2014.”
[17]The Secretary of State did not accede at that time to these arguments or to the request that GA be released from detention. A detailed letter rejecting the claims and arguments made in the letter of 29 August 2014 was in due course sent by the Secretary of State on 29 September 2014. That letter concluded by maintaining the certification of the claims as clearly unfounded.[18]Following this correspondence, judicial review proceedings were commenced on 7 October 2014. An Acknowledgment of Service was due for filing on 28 October 2014 but was not then filed (it was filed on 13 November 2014). On 3 November 2014 a bail application was made; and in the result GA was released from detention on 7 November 2014. Thereafter, by decision dated 24 November 2014 Alexandra Marks, sitting as a Deputy High Court Judge, refused GA permission to apply for judicial review. She directed also that any application to renew should be no bar to removal. Subsequently, however, at a renewed hearing, Judge Mitchell, sitting as a Judge of the High Court, granted permission on 15 January 2015. Thereafter the claim was joined with a like claim being pursued by Mr Yusef Hamad. It was those claims that came on for hearing before Kerr J on 20 and 21 July 2015. Shortly before that hearing, the Secretary of State had served on 14 July 2015 a further, very detailed, decision letter rejecting GA’s arguments and maintaining the certification.

Detention History of GA

[19]It appears that GA had been detained for a period of time in 2012, pending his then proposed removal, before being released. Thereafter he was subject to weekly reporting requirements. As I have mentioned, a request that these be converted to monthly reporting requirements was refused on 11 August 2014. There was no suggestion of any prior failure to comply with reporting requirements.[20]When GA was further detained on 28 August 2014 the detention was thereafter (as required by rules and policy) regularly reviewed. The initial detention was recorded on that date, by a cross placed in a box on the standard form, by reference to GA being a person “in respect of whom there are reasonable grounds to suspect that directions may be given for his/her removal from the United Kingdom”. The Notice to Detainee of that date marked the box indicating “Your removal from the United Kingdom is imminent”; and also marked the boxes to the effect that no satisfactory answers to Home Office enquiries had been given and no satisfactory evidence of a lawful basis to be in the United Kingdom had been provided.[21]On 2 September 2014 GA’s solicitors wrote to the Third Country Unit accepting that GA was a person potentially liable to detention but proposing temporary admission or release on restrictions. The letter referred to policy favouring the grant of temporary admission; noted that GA had never previously absconded or failed to comply with reporting requirements; said that GA posed no risk to the public; and stated that “it is very clear in this case our client should be released.”[22]It appears that the relevant CID forms, as completed, were not placed in evidence before Kerr J, albeit they had been disclosed prior to the hearing. However, the various Detention Reviews were in the Court Bundle for the hearing.[23]A Detention Review dated 1 September 2014 briefly summarised the immigration history. This, among other things, included this statement:
“PTA Court of Appeal withdrawn on 23 June 2014.”
It stated “Detention to be maintained as applicant considered not to be a victim of torture and removal can be set as soon as possible”.[24]GA’s solicitors wrote on 3 September 2014 requesting documentation relating to the detention. There was a further Detention Review dated 8 September 2014. That too summarised the immigration history, including the litigation history. As to the previous judicial review proceedings it stated:
“Judicial Review concluded on 23 June 2014”
. It also said:
“Article 3 considered and awaiting SPOE [Second Pair of Eyes]”
. It went on:
“Detention to be maintained due to disregard shown for EU Immigration Laws and risk of absconding is significant.”
On 15 September 2014 a Detention Review updated the position. It said that “RDs [Removal Directions] to be assessed”. It noted the receipt in the interim of a request by GA’s solicitors for temporary admission and for disclosure of detention information. It also noted receipt of the Pre-Action Protocol letter. The conclusion again was:
“Detention to be maintained due to disregard shown for EU Immigration Laws and risk of absconding is significant.”
A like conclusion was again stated in a further Detention Review of 22 September 2014; which also noted that “fit to fly received” and that Removal Directions were “currently being assessed.”[25]A Detention Review of 29 September 2014 recorded that Removal Directions were set for 8 October 2014 and:
“Detention to be maintained due to the imminence of removal, subject has shown disregard for United Kingdom immigration laws and is a significant absconder risk.”
That was on the same date as the response to the letter before action, as mentioned above.[26]A monthly Progress Report and Notice to Detainee were also provided to GA on 29 September 2014, setting out the background, stating why he was being kept in detention and maintaining that his removal from the United Kingdom was “imminent”. This was confirmed by a Detention Review of 6 October 2014.[27]On 7 October 2014 the judicial review claim was lodged. On 8 October 2014 GA’s solicitors wrote, again requesting his release in the light of the fact that proceedings had now been issued and asserting that, as it was said, removal could not now be imminent. A caseworker reported on this to the Head of Detained Fast Track cases. It was explicitly contemplated that there would be a request for the judicial review application to be expedited and that, with the expected expedition, “removal therefore remains a near future prospect”. In such circumstances, it being assessed that GA posed a significant absconding risk, continued detention was authorised on 10 October 2014. The same stance was taken in a Detention Review of 13 October 2014 and again on 20 October 2014. The substance of that decision was also notified to GA’s solicitors by letter of 24 October 2014.[28]A monthly Progress Report dated 26 October 2014 was also provided to GA, maintaining the decision and referring to the anticipated expedition of the judicial review proceedings.[29]However, as noted in a Detention Review of 3 November 2014, the time for filing the Acknowledgment of Service (28 October 2014) had been missed. This was internally assessed as being inconsistent with the judicial review application being expedited, albeit the judicial review team would file what was called a “nudge letter”. Continued detention was recommended as “Removal remains a realistic prospect.” A manuscript endorsement by a senior officer, however, while approving detention, stated:
“…however if no movement on the applicant’s JR by next review release should be a serious possibility.”
[30]Thereafter a Bail Application dated 3 November 2014 was received. On 7 November 2014, after further review, GA was released from detention.

The hearing before Kerr J

[31]The great part of the two day hearing (and in consequence the great part of the lengthy judgment of Kerr J) was devoted to the principal ground raised in the judicial review proceedings relating to the proposed return to Malta. In a meticulously reasoned decision the judge found that the claims – including those based on Article 18 of the Charter – failed on the evidence. There was no risk if GA were returned to Malta. The judge held that the claims “would be bound to fail in the First-tier Tribunal.” He held that the Secretary of State acted lawfully in issuing the certification under challenge. Permission to appeal was refused by the judge and, subsequently, by Gross LJ. We are not for present purposes concerned with that aspect of the decision.[32]Because the great part of the two day hearing (as of the written arguments) before Kerr J was devoted to those issues, it seems that the arguments on the alleged wrongful detention of GA had to be dealt with relatively swiftly towards the end of the hearing. Mr Payne also said to us that he had in fact been required at the hearing to address that issue before the claimant did and did so (in the absence of proper pleadings) with an uncertain grasp of just how GA’s case was going to be put. It seems, in fact, that until shortly before the hearing much of the emphasis of GA’s case on unlawful detention was on an alleged failure to serve the detention review documentation – which it was belatedly accepted was mistaken – and on the assertion that the assessment that removal was imminent was not justifiable. GA’s initial written arguments had not highlighted the consent order at all (only doing so in a supplemental argument filed very shortly before the hearing).[33]The judge, on the detention issue, summarised the background and reviews and correspondence. He set out the applicable principles and competing arguments. He said this (after noting that there was no evidence of any prior attempt to abscond):
“154. Despite that, I do not think the Secretary of State acted unlawfully by detaining him on 28 August 2014, in anticipation of his removal to Malta. A decision letter had been issued over two weeks earlier, providing a legitimate basis for his removal to Malta, and no challenge to that letter had come from Mr Ararso by 28 August, despite mention of a possible basis for such a challenge in the recital to the 23 June consent order. Thus, as at 28 August, reasonable grounds existed for supposing that his removal could be imminent. 155. However, Mr Ararso’s pre-action protocol letter of 29 August 2014 put a different complexion on the matter….”
He went on to describe as “artificial” the stance maintained by the Secretary of State throughout September 2014 that there was a risk of absconding (see paragraph 158), the judge noting that no risk of absconding had previously been perceived.[34]The principal basis, however, for the judge’s finding that the detention was unlawful was the failure (as the judge found it to be) to make any reference to the undertaking with regard to the stays recited in the consent order of 23 June 2014 and thereby a failure to take account of a relevant consideration. He said in paragraph 161 that he was “in no doubt that the breach was material”. He went on to say:
“If account had been taken of the matter recorded in the recital to the consent order a reasonable Secretary of State would have found continued detention difficult to justify.”
[35]Having so found and having also referred to the three month time limit for issuing proceedings,

the judge went on to draw these conclusions:

“162. It seems to me that if the matter had been properly addressed, Mr Ararso would probably have been released in the middle of September 2014, following the detention review which took place on 15 September. I therefore find that continued detention became unlawful from 16 September onwards. Taking account of the factual context I have mentioned, I reject the proposition that it was reasonable and lawful to await any proceedings that might be issued, and proceed with all despatch towards removal meanwhile. 163. After the proceedings were served on 7 October, and removal of Mr Ararso the next day thereby thwarted, still the Secretary of State did not release him. Instead, her agents invoked the hope of an expedited hearing of the judicial review. This was unrealistic; the nature of the arguments concerning the scope of article 18 of the EU Charter, and its interaction with rights under the European convention, were sophisticated and would take time to resolve.”
[36]His overall conclusion thus was that the detention of GA was lawful from 28 August 2014 to 15 September 2014 but unlawful from 16 September 2014 to 7 November 2014. Damages were to be assessed accordingly.

Arguments

[37]On behalf of the Secretary of State, Mr Payne submitted that the judge’s findings and conclusions were not tenable. He said that the courts should adopt a realistic and practical approach to the question of detention in a context such as the present, assessing the justification for the conduct in question by reference to the facts as they were – or appeared to be – at the time and without over reliance on hindsight.[38]He went on to say that the papers show a constant review by officials on behalf of the Secretary of State of the position. That a letter before action had threatened judicial review proceedings did not necessarily mean there would be proceedings; and in any event, because the 6 month time limit under Dublin II was running and would continue to run until a claim was actually issued, a letter before action could not of itself require effective cessation of the detention and removal process. The Secretary of State was entirely justified in proceeding accordingly. Further, even when such a claim was eventually issued on 7 October 2014 it was reasonable to continue to detain GA in view of the (reasonably) anticipated expedition of the litigation process. He further said that the judge’s view that the assessed risk of absconding was “artificial” was unjustified; on the contrary, it having properly been assessed that removal was imminent, detention to facilitate that removal was indeed justified; and the judge wrongly overlooked or had insufficient regard to the (reasonably) perceived imminence of removal as proper justification.[39]As to the recital in the consent order, he strongly disputed that it was a material factor, albeit he said that in any event it had been taken into account. Indeed he said that, overall, there was illogicality in the judge’s approach: given that the judge had himself accepted that the detention was not unlawful prior to 16 September 2014.[40]For his part, Mr Southey QC, leading Mr Nathan, said that the findings of the judge, as trial judge, were to be respected. He said that the judge was entitled to find that there was no real risk of absconding. However, Mr Southey’s primary case, reflecting the cross-appeal, was to challenge the judge’s conclusion that detention was initially lawful as from 28 August 2014. In effect, he too argued for illogicality in the judge’s approach: albeit in order to achieve a conclusion completely contrary to that advanced by Mr Payne. Mr Southey submitted that the judge had been right to find a material error on the part of the Secretary of State in failing to take into account the recited undertaking; and, that being so, the detention necessarily was unlawful from the outset. His alternative, back-up, argument was that at all events the judge was justified in finding wrongful detention after 16 September 2014: Mr Southey in oral argument accepting, for this purpose, that the Secretary of State had been entitled to a reasonable period of time of this length to consider the contents of the pre-action protocol letter of 29 August 2014. Mr Southey did not pursue any further alternative back-up argument claiming nominal damages.

Disposition

[41]The general principles relating to wrongful detention in an immigration context are set out in the well-known case of R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704. They do not need further discussion here. The overall approach, furthermore, is that generally it is for the person detaining to justify the detention as lawful. Further, it is ordinarily the function of the courts to exercise their own judgment in determining the scope of the power of detention and whether it was lawfully exercised in any given case: see, for example, R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804. In this regard an appellate court will be slow to interfere with a first-instance judge’s evaluation of what is, or is not, a lawful period of detention: see, for example, R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270.[42]It seems to me that the key matter here is the effect of the particular undertaking contained in the recital to the consent order of 23 June 2014.[43]I say that because, as I read his judgment, the judge ultimately based himself on that. It is true that, in paragraph 163 of his judgment, the judge appears to have been critical of the continued decision to detain even after the issue of proceedings on 7 October 2014. But in my opinion it was not in itself unreasonable or unrealistic, in a fast-track case, to work to the prospect of an expedited disposal of the application; indeed, this was only lost after the unanticipated failure to file the Acknowledgment of Service by 28 October 2014. (It is an ironic point of comment that when the Acknowledgment of Service was belatedly filed on 13 November 2014 the initial decision of the court, upholding the stance of the Secretary of State, was forthcoming within two weeks thereafter.) The decision to release on 7 November 2014 was thereafter made, after careful review, sufficiently promptly.[44]As to the period before 7 October 2014, the papers show regular, careful and conscientious review. I agree with Mr Payne that there was no reason here not to detain just because proceedings had been threatened. This is because, first, threatened proceedings do not necessarily materialise in all cases (and in the present case they were not in fact issued until well after the two weeks impliedly indicated in the pre-action protocol letter); and because, second, time for the purposes of removal under Dublin II was continuing to run at that time, and so it was justified to maintain detention notwithstanding the threat of proceedings. Certainly, in my view, there is no general principle to the effect that removal cannot properly be regarded as imminent or capable of being effected within a reasonable period of time simply because judicial review proceedings have been threatened. As will be gathered, I consider that in this particular case it was reasonable throughout this period to regard removal as imminent.[45]I also am not quite clear what the judge was intending to convey when he said that the stated risk of absconding was “artificial”. It is of course correct that GA had not previously absconded or failed to comply with reporting requirements. But his immigration history shows a total determination to stay in the United Kingdom (a determination also evidenced by his telling lies before Mitting J about claiming asylum in Malta, as found by Mitting J); he had been detained for a period in 2012 pending then proposed removal; and, above all, whereas before he was not, for the great part (albeit not all) of the time, liable to removal just because of his various ongoing claims, the risk was now there because removal directions were about to be set. Indeed, as Mr Payne said, it is common-place to detain persons shortly prior to removal: in fact, it is very often wholly impracticable not to do so, given the need first to assess fitness to fly, procuring and paying for the necessary place on a flight and so on.[46]In these circumstances, on the facts of the present case, I see no realistic alternative to the binary choice presented by the principal arguments of Mr Payne on the one hand and Mr Southey on the other hand. If the undertaking in the consent order was in truth not material, then failure expressly to allude to it in the decision to detain was also immaterial: and the detention thereafter (for the reasons given above) was lawful for the entire period. If, on the other hand, the Secretary of State had failed to take into account the undertaking in the consent order as a material consideration, then it is difficult to see how such failure, if material, does not render the detention unlawful from the outset. The position is, in my view, the same whether or not the pre-action protocol letter had expressly drawn attention to the point. To accord the Secretary of State over two weeks’ period of grace to consider that letter in general and that point in particular does not reflect the fact that the undertaking had always been there to be complied with.[47]In such circumstances, I initially saw force in Mr Southey’s primary submission. The relevant recital to the consent order of 23 June 2014 represented a matter which had been agreed between the parties. More than that, it also represented a matter presented as an undertaking to the court. That being so, it was the obligation of the Secretary of State to take into account the stays ordered by Patten LJ and Aikens LJ in terms of the recital to the consent order.[48]Mr Payne submitted that the references in the letter of the Secretary of State of 11 August 2014 to the “grant” of the “injunction” by the Court of Appeal and the references thereafter in some of the review documentation to the disposal of the permission to appeal application on 23 June 2014 sufficed. There is a degree of force in that. But it is limited, in the sense that the decisions on behalf of the Secretary of State in question show no sense of engagement with the actual terms of the undertaking. Indeed, it may be doubted if those making the decisions were actually aware of the precise terms of the consent order.[49]However, on reflection I do not consider that disposes of the matter in favour of GA.[50]Kerr J had said that had the Secretary of State taken account of that particular recital then a reasonable Secretary of State would have found continued detention “difficult to justify”. Quite why that would be so I am unclear. At all events, Ms Marks had found the judicial review claim unarguable; Kerr J himself had, in dismissing the claim on this aspect, found the certification to be lawful; and, the decision letter of 11 August 2014 had provided detailed reasons which (as the judge himself found at paragraph 154 of his decision) had provided a legitimate basis for removal of GA to Malta. There is no obvious reason to think that taking account of the fact that the stays had been granted on two previous occasions would have brought about any different conclusion.[51]So what is it, then, about the recital in the consent order which provides a rationale for a different conclusion, as the judge appears to have thought?[52]In my opinion it is at this stage essential to have regard to substance, not form. The form of the undertaking contained in the recital is in its way clear enough. But what is its substance? It is at this stage, I think, that GA’s arguments start to unravel; and in my view it is not possible to sustain the judge’s analysis.[53]The first point to note is the reference in the recital to the decision of Patten LJ. But to my mind it would come close to a misrepresentation to say that Patten LJ “previously saw sufficient merit in the appeal” to order a stay. Patten LJ stated no such thing. He simply and expressly granted a stay, on the papers and on an urgent basis, to preserve effectually, on pragmatic grounds, the right of an oral hearing. He would have undertaken no review of the merits of the proposed appeal at all. At the very most he possibly may have formed the view – if he reviewed the underlying papers at all – that the proposed appeal was not so wholly unarguable as to render any stay inappropriate. But even that was hardly to be debated, given that Beatson LJ, in refusing permission to appeal on the papers, had not certified the application as totally without merit. At all events, this reference to Patten LJ in the recital in truth can carry no greater weight or relevance than the fact that a stay was granted: something the decision letter itself had in any event noted.[54]The position is, I accept, potentially somewhat stronger in the case of Aikens LJ. He too had in effect continued the stay: but in terms whereby, in his judgment after an oral hearing, he said that “these are all issues which do need to be argued out properly” before the Full Court. But that remark extended also – as the text of the judgment shows – to the arguments of Mr Payne opposing allowing the argument under Article 18 of the Charter to be run at all at the appellate stage; and it is in this regard also noteworthy that Aikens LJ did not grant permission to appeal at that stage. So it is true that Aikens LJ plainly did not regard the position as so unmeritorious as to refuse to continue the stay. But it would not reflect the reality of what Aikens LJ had actually decided to say that he had positively seen “sufficient merit” in the appeal itself such as to indicate that the appeal was arguable; nor, in fairness, does the recital so state. At all events, the statement in the pre-action protocol letter of 29 August 2014 on behalf of GA that release from detention was required “so as to ensure compliance with the Consent Order of 23 June 2014” was altogether misplaced.[55]Mr Southey said: well, that is the wording which the parties agreed in the consent order and that is what the Secretary of State undertook to take into account. But in my view, on analysis, this ultimately was not material. The undertaking cannot, as it were, self-certify itself as material to the eventual outcome. The decisions of Patten LJ and Aikens LJ to grant a stay in truth added little of substance: indeed, as I have indicated, those decisions had – designedly – not engaged with the substance of the proposed appeal, nor did the recital say that they had.[56]Kerr J himself accepted that the detailed reasoning of the Secretary of State’s decision letter (sent before the pre-action protocol letter) provided a lawful basis for removal to Malta. Even had the express terms of the recited undertaking in the consent order been sent out in the decision letter, or thereafter in the detention reviews, there is in my opinion simply no sufficient basis for concluding that the Secretary of State, acting reasonably, would or should then have reached a different decision. Indeed it is of note that the decision was maintained by the Secretary of State even after GA’s solicitors had expressly referred to the terms of the consent order.[57]We raised with counsel (this being a case to which s. 31 (2A) of The Senior Courts Act 1981 could not apply) the question of whether the Secretary of State would need to show that the decision still would inevitably have been the same had she had specific regard to the express terms of the recital. In the context of detention cases, we had been referred to the observations of Richards LJ in R(on the application ofOM) v Secretary of State for the Home Department [2011] EWCA Civ. 909 in particular at paragraphs 23 to 24 and at paragraph 37 of his judgment (with which Hughes LJ and Ward LJ agreed). However, I need say nothing more about this: because, for the purposes of this appeal, Mr Southey expressly accepted a test by reference to the balance of probabilities. On that footing, I conclude that the Secretary of State would still - and properly so - have made the same decision. Put another way, the very limited nature of what Patten LJ and Aikens LJ actually decided when granting a stay and as reflected in the recital would have had no material impact on the Secretary of State’s reasoning and conclusion.[58]I am of course aware that in reaching this conclusion I am departing from that of the trial judge. But this was not really a matter of evidential appraisal or evaluation (the case was in fact decided by reference to the documentary materials). Rather, it depends on an appraisal of the undisputed background and the true nature and effect of the consent order itself: as to which this court is in much the same position as the judge, save that this court has received much fuller argument on the point.

Conclusion

[59]I would allow the appeal of the Secretary of State. I would set aside the judge’s declaration that the detention of GA between 16 September 2014 and 7 November 2014 was unlawful; and I would dismiss the claim for damages for wrongful detention. I would dismiss the cross-appeal.[60]Finally, I ought to add that in the result, as we were told, removal to GA to Malta thereafter was not effected within the requisite six months under Dublin II. In consequence the certification was withdrawn. Moreover, on a further consideration of the substantive claim GA was recognised as a refugee on 19 October 2017.

The costs application

[61]I turn to the issue on costs. I can take it relatively shortly.[62]As mentioned, Gross LJ refused GA permission to appeal from the other part of Kerr J’s judgment. GA indicated an intention to renew. However that then was overtaken by the fact that (the 6 month period under Dublin II having lapsed) the Secretary of State withdrew the certification and considered GA’s claim: GA, indeed, being in due course then recognised as a refugee as noted above.[63]Mr Southey submitted that, in those circumstances, GA’s stance had been vindicated. He had achieved withdrawal of the certification and achieved reconsideration: precisely the relief principally sought in the claim. Thus GA should have his costs of those aspects of the proceedings and of the appeal, or at all events of the appeal, on that issue. I add, however, that by the time of the hearing before us it was agreed that the six month time limit under Dublin II had not expired prior to the hearing before Kerr J: so it could not be maintained (as originally had been asserted) that the stance of the Secretary of State was academic at that time.[64]Reliance was placed on authorities such as M v Croydon Borough Council [2012] EWCA Civ 2607, [2012] 1WLR 2607 and R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415, [2016] 1 WLR 4853.[65]Similar arguments on costs had been raised by the co-claimant, Mr Hamad, on his own application for permission to appeal. They did not impress my Lord, Underhill LJ, who dismissed the application for an award of costs, on the papers, by order of 14 November 2016. No more do they impress me in the present case.[66]As Underhill LJ observed, although the claimant in that case had achieved the result he wanted he did not do so because the decision of the Secretary of State had been shown to be flawed. Rather, he achieved it as the result of a supervening event which was not produced by the litigation.[67]That, with respect, seems to me to be entirely right. Here too GA has not achieved any success in or by reason of these proceedings. Events have not shown his arguments to be right. Neither the Secretary of State nor the courts have ever accepted that his arguments were right. GA has, rather, procured withdrawal of the certification and reconsideration by reason solely of the subsequent (adventitious) lapse, after the hearing, of the requisite 6 month period under Dublin II. That provides a complete distinction from the costs outcome in cases such as M. In substance the position more corresponds to that of the Malta group of claimants (of whom GA was in fact one) discussed in Tesfay at paragraph 114 of the judgment of Lloyd Jones LJ.[68]In such circumstances, in my judgment, there is no proper basis for an award of any costs to GA.[69]Mr Southey did say that to deny GA any costs would, under the Legal Aid regime, have the practical effect of extinguishing or reducing the award of damages for wrongful detention. Since I have concluded that GA is not entitled to any damages for wrongful detention, the point falls away. In any event, my present view is very much to doubt if it could be justified in principle to mould an order as to costs away from what is otherwise appropriate simply to counter the effects of the Legal Aid regime with regard to an award of damages: compare also the observations of Mostyn J in R (Faulkner) v Director of Legal Aid Casework [2016] EWHC 717 (Admin), [2016] 4 WLR 178.[70]So I would dismiss GA’s application with regard to costs.[71]I agree.[72]I also agree.

Cited in 1 later judgment