Amirthanathan, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 1107 (Admin)

Case No CO/5132/2002[2003] EWHC 1107 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 2 May 2003
Strand
London WC2
B E F O R E:
RABINDER SINGH QC
(sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF AMIRTHANATHANClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS JEGARAJAH (attended for hearing) and MS NANAYAKKARA (attended for judgment)(instructed by SRI & CO) appeared on behalf of the CLAIMANTMS LAING (instructed by TREASURY SOLICITOR) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]THE DEPUTY JUDGE: This is a claim for judicial review of the decision of the Secretary of State to detain the claimant on 6th November 2002. Permission to bring the claim was granted by Hooper J on 15th January 2003. The substantive hearing came before me initially on 28th March but was adjourned in order to allow the claimant to amend his grounds, after I enquired whether the Human Rights Act 1998 (HRA) might be relevant to the case, to include express reliance on Article 5 of the European Convention on Human Rights (ECHR), as set out in Schedule 1 to the HRA. Fairness required that the Secretary of State should be given an adequate opportunity to meet the Article 5 argument and so I adjourned the hearing until 1st May. I am grateful to all counsel who have appeared in the case for their helpful written and oral submissions. Material Facts[2]The claimant is a Sri Lankan national, who was born on 9th July 1978. He arrived in the United Kingdom on 17th August 1999 without documentation. He claimed asylum on arrival and was apparently granted temporary admission.[3]On 2nd May 2000, the claimant's asylum application was refused and he was refused leave to enter. The claimant exercised his right of appeal, and that appeal was dismissed by an adjudicator by a determination dated 3rd October 2000.[4]On 31st October 2000, the Immigration Appeal Tribunal refused leave to appeal.[5]On 12th March 2001, the claimant's representatives stated that he wished to make a fresh asylum claim.[6]On 5th June 2001, they made representations to the effect that his return to Sri Lanka would amount to a breach of his human rights. In a decision dated 31st January 2002, but not in fact served on the claimant until 6th November 2002, the Home Office refused the claimant's human rights claim (see the document starting at page 39 of the court bundle) and this generated a right of appeal by virtue of paragraph 25 of that letter.[7]On 31st October 2002, a letter was sent granting the claimant temporary admission, which is at page 35 of the court bundle.[8]On 1st November 2002, the claimant's solicitors replied. It is necessary for me to look at that letter, which is at page 36 of the court bundle:
"Thank you for your letter dated 31st October 2002 via fax ... "
In that, you have informed our client to attend for a decision interview at your office on 6th November 2002. "As you have mentioned in your letter that the interview is a decision interview we kindly request you to forward a copy of the decision that you have reached on our client's asylum claim. "As you are aware our client's Human rights application dated 5th June 2001 and subsequent one stop notice dated 19th December 2001 are still pending consideration under [by] the secretary of state. "If the secretary of state feels that our client's HRA [claim] should be refused then we remind you that Mr Edward [the claimant] has the right of appeal against such decision under your policy dated 19th July 2001. "We therefore appreciate your reply before 6th November 2002."[9]On 3rd November 2002, the Home Office replied in turn to that letter (see page 37 of the court bundle). That letter stated:
"Further to your letter of 01.11.2002 we trust that you understand that the purpose of the interview is to serve the decision, thus we cannot provide you with a copy of the decision letter prior to the actual interview. "
Please ensure that your client attends."[10]On 6th November 2002, the claimant was interviewed and a letter refusing his human rights claim was served on him. He was also detained. Later the same day, his representatives wrote to the Home Office stating that he wished to exercise his right of appeal under Section 65 of the Immigration and Asylum Act 1999 (the 1999 Act), in other words on human rights grounds (see page 45 of the court bundle). The letter reads, so far as is material, as follows:
"In accordance with your policy dated the 23rd August 2001, our client is entitled to a right of appeal and our client wishes to exercise his right of appeal under section 65 of the Immigration and Asylum Act 1999. Please forward us the appropriate forms for us to complete. "
We would be grateful if you could cancel any removal directions set until a decision has been made on this representation." Also on 6th November they wrote a second, lengthy letter requesting the claimant's release from detention (see the letter starting at page 46 of the court bundle). I do not need to read all of that letter but it is there for reference in case it needs to be referred to in the future. It will suffice if I draw attention in particular to the first full paragraph, in which reference is made to a telephone conversation on the evening of 6th November between the author of the letter and a Ms Askin of the Home Office, which continues:
"We explained to her that although our client's Human Rights claim is refused he is entitled to a right of appeal. We also explained to her that the Secretary of State has acknowledged in his refusal letter that our client is entitled to a right of appeal and we actually read the 25th paragraph of the Refusal letter to her. After explaining his legal position, we asked her the reason for detention. She said that they are going to remove the client. We asked her whether they have set any removal direction in this case and she replied no, but is trying to document the client."
[11]On 7th November 2002, a brief letter was sent by the Home Office (see page 54 of the court bundle). This enclosed the papers which the claimant had to complete and return to the Home Office by 21st November 2002 if he wished to exercise his right of appeal against the Secretary of State's decision to refuse his human rights application. The letter concluded:
"The decision on your clients [sic] detention will be taken by the Chief Immigration [Officer] later today."
[12]On the same day, as that letter indicated, the claimant's detention was reviewed but it was decided to continue it, and the facts were sent to his representative explaining the reasons, which appear at page 68 of the court bundle. I will quote this in full so far as it does not consist of formal parts:
"You have asked for the reasons why your client named above has been detained. "
Your client's asylum application has been refused, as has his HRA claim. It is noted that you intend on his behalf to exercise his right of appeal against this decision. However, we are currently pursuing the matter of arranging a Travel Document for your client, to be used if the appeal you propose fails. To this end, he will be interviewed on 14.11.02 by an officer of the Sri Lankan High Commission. I am not satisfied in the current circumstances that he would voluntarily attend the Sri Lankan High Commission for this interview. "When this is done, and the appeal your client wishes to make is set in motion by your returning the documents sent to you, further consideration will be given to the situation of your client. Please be assured that his detention will be reviewed by senior officers on a regular basis."[13]Clarification was sought by the claimant's representatives by telephone, and there is before the court an attendance note of that conversation at page 69 of the court bundle. I will quote, so far as is material, from it. It records a conversation which took place at 3.55 pm on 7th November 2002 with a Mr Andy Paulston, an immigration officer at Waterloo. The attendance note shows that the claimant's representatives checked with Mr Paulston whether they could speak to the Chief Immigration Officer, but he said that the CIO was "not in his seat" and that he could assist them. The note continues:
"We asked him what does the fax means [sic]: "
Does this means [sic] he is detained to facilitate the Sri Lankan High Commission interview? "He said that they have stated this very clearly in their fax that he will not voluntarily attend the Sri Lankan High Commission for interview. "That means he is detained to facilitate the Sri Lankan High Commission interview? "He asked me why are you trying to take it from my mouth? "We told him it was not very clear in the fax and before we file a Judicial Review we want to clarify this? "The officer confirmed 'Yes'."[14]On the same day, 7th November, the claimant's representatives wrote a further letter (at pages 70 and 71 of the court bundle), which referred to the Home Office's fax of 7th November at 1320 hours and the subsequent telephone conversation with Mr Paulston. It then, in effect, set out in summary the grounds on which an application for judicial review might be made. It was in substance a letter before claim.[15]The Home Office replied to that letter the next day, 8th November 2002, in a letter, which is at pages 73 and 74 of the court bundle. I will quote material parts of that letter:
"I am sure that you will not accept this view, but you can certainly understand how it might be held, that your client has consistently sought to take advantage of the asylum process to prolong his unlawful residence in this country ... "
Were we to grant your client temporary admission, it would be on the basis that he attended for a documentation interview with the Sri Lankan High Commission. He has intimated to us, and you have confirmed this in your fax, that your client would refuse to speak to the Sri Lankan High Commission. You and he have stated that your client would not comply with the terms of temporary admission, and detention is the only avenue left open to us, in order to effect removal. I accept that an appeal will take place in due course, however your client has been unsuccessful in the past, failed to attend a previous interview on the 31st of October and has suggested that he will not assist in the documentation process unless compelled to do so. Maintaining detention is, in our view, therefore justified."[16]On 12th November 2002, an appeal was formally lodged under Section 65 of the 1999 Act. On 15th November 2002, the claimant was released from detention following a further review.[17]At this stage, I hope it will be helpful for me to refer to the witness statement of Marion Dennett, filed on behalf of the Secretary of State, at pages 174 and following of the court bundle. I was informed in oral submissions by Ms Laing, who appeared for the Secretary of State, that this witness statement was signed by this witness because she was the Chief Immigration Officer who was available to sign it but that it had been drafted by another CIO, Helen Hutcheson, who had taken one of the relevant decisions, a review decision on 13th November 2002. Be that as it may, the witness statement describes largely, as I understand it, by reference to the case papers what occurred from the Home Office point of view in November 2002. Paragraph 7 reads:
"The next scheduled detention review took place on the 7th of November and was conducted by CIO Mr Ben Kennedy. The decision, agreed by the duty Inspector, was to maintain detention. It was noted by Mr Kennedy that the passenger would be unlikely to present himself willingly at the interview arranged with the Sri Lankan High Commission. On the 12th of November the passenger's representatives lodged their client's appeal by fax ..."
Paragraph 8 reads:
"As the duty Casework CIO on the 13th of November CIO Helen Hutcheson reviewed this correspondence. As the passenger had now appealed he was at this time not removable."
Miss Hutcheson also considered the fact that he had every intention of frustrating the documentation process and took this as an indication that he would be unlikely to comply with any arrangements to remove should his appeal fail. She also considered the fact that should he remain detained, his appeal would be expedited. Paragraph 9 reads:
"As to the letter of 8 November 2002, I appreciate that attendance at the Sri Lankan High Commission cannot be imposed as a condition of temporary admission. I accept that the letter is unfortunately phrased, but temporary admission could have been granted if Mr Amirthanathan would comply voluntarily with the documentation process. The decision to detain was largely based on this ground and was not a condition of temporary admission. The letter should have reflected the fact that, had he decided to comply, then this would have been taken into account."
Paragraph 10 reads:
"Notwithstanding this, however, CIO Ms Hutcheson considered that, in all likelihood, the appeals process, even if expedited, could take some months and that, faced with the pressures on detention spaces, Chief Immigration Office's bail would be an appropriate alternative. She therefore wrote to [the claimant's representatives] on the 13th of November [that letter appears at page 94 of the court bundle] advising them that the interview with the Sri Lankan High Commission would not take place and that we would consider an application for CIO's bail. This letter was faxed to the representatives on the 13th of November. The next scheduled detention review took place on the 15th of November and was conducted by CIO Mr Ben Kennedy who took the view that granting of temporary admission would be more appropriate and, with the concurrence of the duty Inspector, the passenger was duly released."
[18]There is attached as an exhibit to that witness statement a document which contains a number of manuscript notes by relevant immigration officers (page 168 of the court bundle). These manuscript notes record the series of decisions and reviews in relation to the claimant's detention which took place in November 2002, but because they are summarised in the witness statement, I hope it is unnecessary for me to read from them. It should be noted that nothing is said by Ms Dennett about what happened between 13th and 15th November 2002, even though an appeal had by then been formally lodged and, as I shall mention in a moment, there had been a hearing in this court before Richards J on 13th November. The inference, which can fairly be drawn from her witness statement at paragraph 10 and the notes exhibited to it, is that even though the case no longer fell within the criteria for detention set out in the Secretary of State's policy, to which I shall return later, it was not decided to release the claimant immediately, nor even to bring forward the date when the next review of his detention was to take place ie 15th November.[19]In the meantime, on 10th November 2002 these proceedings for judicial review were issued. Permission was refused on the papers by Sullivan J on 11th November. The application was renewed. On 13th November, as I have mentioned, it came before Richards J. It is clear from the court bundle that although the Home Office was not represented at that hearing, nevertheless they were aware of the fact that the hearing was taking place although they did observe that they had not had enough notice of the hearing in order to instruct counsel to appear. In any event, Richards J adjourned the application for permission for seven days and also granted an injunction restraining the Secretary of State from requiring the claimant to attend a documentation interview with the Sri Lankan High Commission, which was then scheduled for 14th November. In the event, the renewed application did not have to be considered as a matter of the same urgency because that interview was cancelled and the claimant was released on 15th November.[20]Given that the claimant was released, it might be said that the issue before me is therefore academic. However, it should be noted that at the moment when these proceedings were commenced, the claimant was still in detention, so it is not the case that the claim relates to hypothetical facts. Further, it has not been suggested to me on behalf of the Secretary of State that it is inappropriate for the court to decide the issue. In any event, the claimant has a claim for damages and the present issue will be of relevance to that claim if his detention was unlawful. Material Legislation[21]I should first refer to Schedule 2 to the Immigration Act 1971. Paragraph 8 of that Schedule confers on the Secretary of State a power in essence to remove from the United Kingdom a person who has not been granted leave to enter. It is common ground before me that the claimant was liable to removal under that provision. Paragraph 16 of Schedule 2 confers a power of detention in respect of, among other people, persons liable to removal under paragraph 8. Again, it is common ground before me that there was, under paragraph 16, as a matter of law a discretionary power in the Secretary of State to detain the claimant. Finally, paragraph 21 should be noted which relates to temporary admission or release of persons who are liable to detention. Paragraph 21 reads:
"A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him. "
So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, [as to his employment or occupation] and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer."[22]It is common ground before me that the Secretary of State (or immigration officers) have no power in law to attach as a condition to temporary admission a requirement that someone should be interviewed by the authorities of a state to which it is proposed to remove him. So much is clear from paragraph 9 of the witness statement on behalf of the Secretary of State, which I have already quoted.[23]Section 65 of the 1999 Act relates to acts made unlawful by Section 6(1) of the HRA and permits appeals to be made in relation to refusals of human rights claims. Turning to the Human Rights Act itself, I need not quote in detail from it but I note the following provisions in particular. Section 6(1) makes it unlawful for a public authority, such as the Secretary of State in the present case, to act in a way which is incompatible with a Convention right, in the sense of a right set out in Section 1 to the HRA. By virtue of Section 6(3)(a) this court is also a public authority and must itself comply with the Convention rights. Under Section 7, a person such as the present claimant is entitled to bring proceedings alleging that his Convention rights have been breached under Section 6(1) including by way of judicial review. Under Section 8, the court has a discretion to grant such remedies as appear to be just and appropriate in the event of a finding of a breach of a Convention right, including under subsection (2) a power to award damages if, as is plainly the case in this court, it has power to grant damages or award compensation otherwise.[24]Before leaving the Human Rights Act, I should also note the important impact of Section 3(1) on public law. Section 3(1), which is the interpretative obligation applicable to all legislation and requires all legislation to be read and given effect so far as possible in a way that is compatible with Convention rights, has the effect that in relation to a discretionary power, such as a general power of detention like the one contained in paragraph 16 of Schedule 2 to the 1971 Act, it has to be read subject to a person's Convention rights. It is clearly possible to exercise the detention power in paragraph 16 in a way which is compatible with Convention rights: sometimes it will be, and sometimes it may not be. Given that it can be exercised in a way that is compatible with the Convention rights, it plainly follows that where it is exercised in a way which is incompatible with a Convention right, the decision is unlawful under Section 6(1) of the HRA. The substantive Convention right upon which the claimant relies in this case is the right to personal liberty in Article 5, which so far as material reads as follows: "(1)Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... f) The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition ... "(4)Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful." [My emphasis] The Secretary of State's Policy on Detention[25]At the hearing before me, Ms Laing produced for me the relevant version of the Secretary of State's policy, which was applicable at the time of the facts of this case and which has been revised from time to time over the last few years. It is headed "Chapter 38 -- Detention/Temporary Release". Paragraph 38.1, which is headed "Policy", reads as follows:
"General In the White Paper 'Fairer, Faster and Firmer -- A Modern Approach to Immigration and Asylum' published in July 1998 the Government made it clear the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention ... The White Paper went on to say that detention would most usually be appropriate: . to effect removal; . initially to establish a person's identity or basis of claim; or . where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release ..."
[26]At this juncture, I should note that when I asked Ms Laing which of those three bullet points the Secretary of State relied upon in this case, she answered the first: namely, to effect removal. At first sight, it might certainly have appeared from the letter of 8th November 2002 that reliance was also primarily being placed on the third bullet point: namely, where there is reason to believe that the person would fail to comply with conditions attached to the grant of temporary admission. However, as I have already noted, the witness statement filed on behalf of the Secretary of State makes it clear that that letter was inappropriately worded and that it is accepted that there was no power to attach any such condition which would have required attendance for interview with the Sri Lankan High Commission. I therefore need say no more about that, and this case will turn on whether the Secretary of State was lawfully entitled to detain the claimant to effect his removal.[27]Going back to paragraph 38.1 of the policy document under the heading "Use of detention", it later continues:
"In all cases detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. However, a person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable."
[28]Paragraph 38.2, which is headed "Power to detain", sets out the relevant power, in particular paragraph 16(2) of Schedule 2 to the 1971 Act, and also includes the following:
"Detention can only lawfully be exercised under these provisions where there is a realistic prospect of removal."
[29]Paragraph 38.3, which is headed, "Factors influencing a decision to detain", first sets out six points which are numbered:
"1) There is a presumption in favour of temporary admission or temporary release. 2) There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 3) All reasonable alternatives to detention must be considered before detention is authorised. 4) Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified. 5) There are no statutory criteria for detention, and each case must be considered on its individual merits. 6) The following factors must be taken into account when considering the need for initial or continued detention."
[30]Then there are set out in a number of bullet points factors which might weigh in favour of detention or against detention. They are there for reference but I will not set them out at length in this judgment.[31]Under paragraph 38.5.2, which is headed "Form IS91R 'Reasons for Detention'", one of the reasons which the immigration officer is able to tick as being applicable to the particular case is set out in a bullet point as being, "Your removal from the United Kingdom is imminent." Again, at the oral hearing before me, Ms Laing confirmed on behalf of the Secretary of State that it was that reason which was applicable to the facts of the present case. In other words, the claimant was detained because his removal was regarded as being "imminent". Issues[32]The two main issues which arise in the present case are: first, whether the claimant's detention was unlawful under purely domestic law, by which I mean without reference to Article 5, which is, of course, part of our domestic law by virtue of and for the purposes of HRA; secondly, whether the claimant's detention was incompatible with Article 5 and therefore unlawful under the HRA. Fundamental Principles[33]Before I turn to those two specific issues, I should set out some of the fundamental principles which are relevant to a case such as the present one, which involves the deprivation of a person's liberty. It will suffice for this purpose to refer to two well-known authorities. The first is the decision of the House of Lords in The Queen v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74, at pages 110 to 112 in the speech of Lord Scarman. First, at page 110 F, Lord Scarman in turn quoted from "the classic dissent of Lord Atkin in Liversidge v Andersen [1942] AC 206" and stated that this was "now accepted as being correct", not only on the point of particular construction which arose in that wartime case, but "in its declaration of English legal principle." At page 245 of his speech, Lord Atkin said:
"In English law every imprisonment is prima facie unlawful and ... it is for a person directing imprisonment to justify his act."
At page 111 B, Lord Scarman noted that although there are procedural differences between habeas corpus and judicial review, these should not deflect from the court's approach to matters of substance. At page 111 E, Lord Scarman noted, "the jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction." At page 111 H, Lord Scarman resoundingly rejected any suggestion that our law fails to protect a foreign national with the same rigour. He said:
"Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection."
Finally, at page 112 A to C, Lord Scarman noted that the initial burden is upon an applicant, but that it is transferred to the executive in order to demonstrate that there is a lawful basis for detaining the person concerned.[34]The second case is the very recent decision of the Court of Appeal in The Queen on the application of Abbassi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [2003] UKHRR 76. It will suffice if I quote briefly from two paragraphs. Paragraph 59 reads:
"One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the seventeenth century into 'the most efficient protection yet developed for the liberty of the subject' ... The court's jurisdiction was recognised from early times as extending to any part of the Crown's dominions: '... for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted.' [a quotation from Blackstone] ..."
Paragraph 60 reads:
"The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that: '... no member of the executive can interfere with the liberty ... of a British subject except on the condition that he can support the legality of his action before a court of justice' ... "
This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court ... It applies in war as in peace ..."[35]It is against that background that I turn to the two specific issues that I have already identified. The First issue[36]It was common ground before me that a failure by the Secretary of State to follow his own policy on detention would constitute an error of public law entitling the court to interfere with his decision. This was also common ground in The Queen on the application of Nadarajah v Secretary of State for the Home Department [2002] EWHC 2595 Admin 2nd December 2002, a decision of Stanley Burnton J. In that decision, Stanley Burnton J implicitly endorsed that concession as being correct in law since he applied that principle to the facts of that case, and I would also endorse it.[37]Ms Laing's primary submission for the Secretary of State was that the decision to detain the claimant on 6th November 2002 was taken at a time when removal was "imminent" under the policy to which I have referred and no appeal was yet pending. She submitted that "pending" in this context meant pending once a notice of appeal has been formally lodged, and not earlier when, for example, a solicitor has given notice informally that a claimant intends to appeal. In her oral submissions, she accepted that once an appeal has been formally lodged, then (absent other factors) it will be contrary to the Secretary of State's own policy to detain or continue to detain a person even though there is still in law a power to detain. She also recognised that in substance her submission was one which had been rejected by Stanley Burnton J in Nadarajah, but she invited me not to follow the approach taken in that case which she informed me was under appeal. It is therefore necessary to quote from the relevant part of that judgment, which begins at paragraph 50 under the heading, "The Detention of the Claimant":
"I confess to having found this the most difficult of the issues before me. It is common ground that the Home Secretary had power to detain the Claimant, under paragraph 16(2) to Schedule 2 to the Immigration Act 1971. The exercise of that power does not depend either expressly or by implication on the existence of a reasonable fear that the detainee will abscond if not detained: it depends on the existence of reasonable grounds for suspecting that he is someone in respect of whom removal directions may be given ... Detention may then be authorised pending a decision to give such directions and his removal in pursuance to such directions if they are given."
Paragraph 51 reads:
"It is also common ground that the power to detain must be exercised reasonably and in accordance with the stated policy of the Home Secretary. His policy states that detention must be used sparingly and for the shortest period possible, although this is as much a statement of the legal position as a statement of policy."
[38]Having considered in detail the submissions and the facts in the case before him, Stanley Burnton J then concluded so far as relevant as follows in paragraphs 67 and 68:
"I read this to mean that in the normal case, the institution of judicial review proceedings for the second time in a third country case will automatically lead to a suspension of removal; in which case, removal not being imminent, detention for the purposes of removal alone is not justified. This practice means that a genuine statement by the applicant's solicitors that judicial review proceedings are to be instituted is ignored, as it was in the present case. The Claimant's solicitors had stated in their letters of 25 February 2002, both of which were faxed to the South East Port Surveillance Team, that they had instructions to seek judicial review. In addition, at the Claimant's interview on 27 February, Ms Matthews reiterated that she intended to issue a further judicial review application, and complained that had she been warned that the Claimant would be detained, she would have issued proceedings before the interview. It follows from Mr Taylor's evidence that had she done so, the Claimant would not have been removed to Germany until the determination of the proceedings, and he would not have been detained~... "
In these circumstances, in my judgment the Claimant's removal was not imminent when he was detained, and if the policy had been applied he would not have been detained. There was therefore a failure to apply the policy ..."[39]Far from thinking that the approach taken in Nadarajah is wrong, I think it is right and I should follow it. I consider that the detention of the claimant on the facts of this case was contrary to the Secretary of State's own policy on detention and was therefore unlawful. My reasons are in essence the following. First the claimant's solicitors had given notice, albeit informally, that they would appeal against the decision once it was served on him. There was an indication of that as early as 1st November 2002, but it was certainly made clear on 6th November 2002 after they learned that the claimant had in fact been detained. Secondly, it is accepted by the Secretary of State that removal was not imminent up to the point at which the decision was served on the claimant on 6th November, and also after the point at which a formal notice of appeal had been lodged. Accordingly, it is also accepted that (absent other factors) it would have been contrary to the policy to detain him before 6th November or, as I understand it, after the notice of appeal was formally lodged. That indeed appears to be consistent with what the evidence on behalf of the Home Office was, as summarised in paragraph 67 of the judgment of Stanley Burnton J in Nadarajah. Further, it was accepted at the oral hearing before me that once an appeal had been lodged, it is inappropriate to require a person to give an interview to the authorities of the state to which he will be removed in order to facilitate the obtaining of a travel document. This is no doubt for the sound reason that such an interview might lead to information being provided which might put the claimant or his family, who in the present case are still in Sri Lanka, at risk on the hypothesis that his appeal on human rights grounds may succeed.[40]However, it is said on behalf of the Secretary of State that in the interim period removal was imminent. In my view, that is to take an excessively formalistic approach to the question, and one which is not in keeping with the spirit with which English law regards personal liberty. I have already mentioned the "jealous care" to which Lord Scarman referred in Khawaja. Thirdly, the fact is that there is always going to be some delay in lodging papers against a refusal decision. That is why a certain period is allowed for an appeal of ten working days, as it was in the present case. Even if the claimant's representatives are able to lodge the papers within a day or two, the Secretary of State's submission would mean that the claimant could be detained for that period for apparently no good reason at all. It was submitted by Ms Laing that on the facts of the present case, the immigration officer was entitled to take the view that once a refusal decision has been taken a person is more likely to "do a runner", as she put it, than before, even if they have a good record of compliance in the past. That again seems to me to invite a formalistic approach.[41]The policy to which I have referred itself recognises in a number of passages that a person who has an appeal pending is going to have an incentive to comply with conditions and so will tend not to need to be detained. If that person has already indicated that he wishes to appeal but has not yet lodged the papers, it seems to me that the same considerations are likely to apply.[42]It was also submitted by Ms Laing that the requirement that there should be a formal notice of appeal provided certainty so that immigration officers know where they stand. Certainty is, of course, a virtue in public administration; but justice is even more important. In order to avoid the risk that threats of appeals will be used in an abusive way or to string things out, it seems to me that the relatively short time limit for appealing should cater for that. It is better, in my opinion, if the state has to wait ten working days before deciding to detain a person than for a person to be detained only because he has not yet taken the formal step of lodging the notice of appeal even though he has informally given notice that he would like to appeal. Even if I were wrong about this in general, the Secretary of State appears to have no answer to the point that once the formal appeal had been lodged on 12th November 2002, the claimant should have been released even on his own understanding of his own policy. That was not done in the present case and it seems to me that the claimant was detained needlessly, in any event, for approximately three days.[43]I note in passing that that was at a time when not only had the formal appeal been lodged, but these judicial review proceedings had also been started on 10th November. One of the orders which was sought at that time was an order from the court for the claimant's release from detention. As it happens, that has now become unnecessary because, as I have already said, the claimant was released on 15th November. But all other things being equal, I would have expected that being on notice of judicial review proceedings, as the Home Office clearly was because they refer to the fact that they had relatively little notice of the hearing before Richards J on 13th November, much more consideration should have been given (and much sooner) to the question whether the claimant should be released once it was known that a formal notice of appeal had been lodged. To wait for the scheduled review date, which was to take place on 15th November, seems to me to have been an unlawful approach to take even if I had otherwise accepted the Secretary of State's submissions as to the meaning of "imminent" in his own policy. The Second Issue[44]It may be that I am wrong on the first issue. In any event, I heard detailed submissions on Article 5 of the ECHR so it is only right that I should deal with it. If I am right on the first issue, it follows that there was also a breach of Article 5 for the simple reason that detention under that Article cannot be lawful unless it is at least in conformity to domestic law, which on this hypothesis it was not. However, even if I am wrong on the first issue, and detention was lawful under purely domestic law, there could still be a violation of Article 5. This is because the concept of "lawfulness" in Article 5 requires, in addition to conformity with domestic law, that detention should be consistent with the purpose of that Article which is to avoid arbitrary detention. A number of authorities were cited to me, and it is necessary for me to refer to them at least briefly. The first is the judgment of the European Court of Human Rights in Aksoy v Turkey (1996) 23 EHRR 553, at paragraph 76:
"The court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the state with his or her right to liberty. Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3) which is intended to minimise the risk of arbitrariness and ensure the rule of law ..."
[45]A long line of authorities, of which Aksoy is an example, is also reflected in the decision of the House of Lords in The Queen v Governor of HMP Brockhill, ex parte Evans [2000] UKHRR 836, at page 852 A to D in the speech of Lord Hope of Craighead:
"The jurisprudence of the European Court of Human Rights indicates that there are various aspects of Art 5(1) which must be satisfied in order to show that the detention is lawful for the purposes of that Article. The first question is whether the detention is lawful under domestic law. Any detention which is unlawful in domestic law will automatically be unlawful under Art 5(1) [a point I have mentioned]. It will thus give rise to an enforceable right of compensation under Article 5(5), the provisions of which are not discretionary but mandatory. The second question is whether, assuming the detention is lawful under domestic law, it nevertheless complies with the general requirements of the Convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law: see Arts 8 to 11 of the Convention. They include the requirement that the domestic law must be sufficiently accessible to the individual and that it must be sufficiently precise to enable the individual to foresee the consequences of the restriction: Sunday Times v United Kingdom (A/30)(1979-80) 2 EHRR 245; Zamir v United Kingdom (1985) 40 DR 42, paragraphs 90 to 91. The third question is whether, again assuming the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate: Engel v Netherlands (1979-1981) 1 EHRR 647, paragraph 58; Tsirimis v Greece (1998) 25 EHRR 198, paragraph 56."
[46]The next authority to which I must refer because both parties rely on it is Chahal v United Kingdom (1996) 23 EHRR 413 at paragraphs 127 to 129, where the Court of Human Rights stated as follows:
"127. The notion of 'lawfulness' under Article 5(4) has the same meaning as in paragraph 1, so that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text of the Convention, the general principles embodied therein, and the aim of the restriction permitted by Article 5(1). The scope of the obligations under Article 5(4) is not identical for every kind of deprivation of liberty; this applies notably to the extent of the judicial review afforded. Nonetheless, it is clear that Article 5(4) does not guarantee a right to judicial review of such breadth as to empower the Court on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision making authority. The review, however, should be wide enough to bear on those conditions which are essential to the 'lawful' detention of a person according to Article 5(1). "128. It follows from the requirements of Article 5(1) in cases of detention with a view to deportation that Article 5(4) does not demand that the domestic court should have the power to review whether the underlying decision to expel could be justified under national or Convention law. "129. The notion of 'lawfulness' in Article 5(1)(f) does not refer solely to the obligation to conform to the substantive and procedural rules of national law; it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5. The question therefore arises whether the available proceedings to challenge the lawfulness of Mr Chahal's detention and to seek bail provided an adequate control by the domestic courts."
[47]In case it be thought that Chahal is relatively out of date on the scope and effect of Article 5(1)(f), Ms Laing properly drew my attention to a more recent judgment of the Court of Human Rights in Conka v Belgium (Application number 51564/99), a judgment of 5th February 2002. At paragraphs 38 and 39, the Court of Human Rights said as follows:
"38. The Court notes that it is common ground that the applicants were arrested so that they could be deported from Belgium. Article 5(1)(f) is thus applicable in the instant case. Admittedly the applicants contest the necessity of their arrest for that purpose. However, Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example, to prevent his committing an offence or fleeing. In this respect, Article 5(1)(f) provides a different level of protection from Article 5(1)(c): all that is required under subparagraph (f) is that 'action is being taken with a view to deportation'. [Reference is then made to the judgment in Chahal at paragraph 112] "39. Where the 'lawfulness' of detention is an issue including the question whether 'a procedure prescribed by law' has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness ..."
[48]The parties referred me extensively to the very important and recent decision of the House of Lords in The Queen on the application of Saadi v Secretary of State for the Home Department [2002] UKHL 41 [2003] UKHRR 173. The main speech was given by Lord Slynn of Hadley with whom other members of the appellate committee agreed. At paragraph 36, Lord Slynn said:
"Detention for the purpose of inquiring whether he must or should be granted asylum is permitted by Article 5(1)(f) and there is no provision in that paragraph requiring it to be shown that detention is necessary for that purpose. This is to be contrasted with paragraph 1(c) of Art 5, which excludes from the prohibition of detention a case 'when it is reasonably considered necessary to prevent his committing an offence or fleeing'."
And at paragraph 37, Lord Slynn said:
"On the face of it, it is not a pre-condition of the power to detain that detention should be 'necessary' to prevent an unlawful entry -- necessary in the sense that no other procedure would be sufficient to allow an investigation of the basis of the claim for asylum."
[49]After lengthy citation from judgment in Chahal and other authorities including Conka, Lord Slynn concluded on this point at paragraph 43 that:
"I would accordingly hold that subject to any question of proportionality, the action taken here was 'to prevent [a person] effecting an unauthorised entry into the country' within the meaning of Article 5(1)(f)."
At paragraph 44, Lord Slynn said:
"There remains the issue whether, even if detention to achieve speedy asylum decision-making does fall within Article 5(1)(f), 'detention was unlawful on grounds of being a disproportionate response to the reasonable requirements of immigration control'."
Paragraph 45, Lord Slynn continued:
"In Chahal v United Kingdom ... the European Court of Human Rights say that the lawfulness of detention had to be seen against the substantive and procedural rules of national law 'but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness'. I do not see that either the methods of selection of these cases (are they suitable for speedy decision?) or the objective (speedy decision) or the way in which people are held for a short period (ie short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate ..." [My emphasis] At paragraph 47, Lord Slynn continued as follows: "
It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. Accepting, as I do, that the arrangements made at Oakington provide reasonable conditions, both for individuals and families, and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Farfrom being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here." [My emphasis][50]On the basis of Lord Slynn's speech, Ms Laing sought to persuade me that "arbitrary" in the context of Article 5(1)(f) should really be read to be equivalent to "irrational". She points rightly to the fact that the Court of Human Rights, as endorsed in the House of Lords in Saadi, has made it clear that in the context of Article 5(1)(f), as opposed to other contexts such as mental health in Article 5(1)(e), there is no need to show that detention is necessary to achieve the relevant legitimate aim. Nevertheless, it seems to me that, on a fair reading of the speech of Lord Slynn in Saadi read as a whole, it is clear that the House of Lords envisaged in that case that the concept of arbitrariness could include breach of the principle of proportionality, and not merely irrationality. This is also reinforced by the passage in Evans in the speech of Lord Hope, to which I have already referred, in which Lord Hope gave, as one example of what might constitute arbitrary behaviour, an act which is not proportionate.[51]Finally, and possibly most importantly, this view of what arbitrary detention under human rights instruments entails is reinforced by the judgment of Brooke LJ in the recent decision of the Court of Appeal in A X and Y v Secretary of State for the Home Department [2002] EWCA Civ 1502 [2002] UKHRR 1141. In that judgment, with which Chadwick LJ expressly agreed (see paragraph 134), and which I do not understand for relevant purposes to be departed from by Lord Woolf, CJ, either (see paragraph 36), Brooke LJ said this at paragraph 130: "What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the State to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The State's power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means ..." [My emphasis][52]Finally, in relation to the authorities, it is necessary for me to cite from the decision of the Court of Appeal in Samaroo and Sezek v Secretary of State for the Home Department [2001] EWCA Civ 1139 [2001] UKHRR 1150. The main judgment was given by Dyson LJ, who considered at impressive and eloquent length the concept of proportionality at paragraphs 15 to 35. Because of the lengthy nature of the passage to which I have referred, it is not necessary for me to set out what Dyson LJ said at exhaustive length in this judgment. Nevertheless, I would draw attention to what he said in particular at paragraph 35, when he set out the nature of the role of the court:
"Accordingly, the function of the court in a case such as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr Samaroo's rights to respect for his family life on the one hand [since that was a case concerning Article 8 of the ECHR] and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment. In considering the particular factors to which the court will have regard in deciding to what extent (if at all) to defer to the opinion of the Secretary of State. I have been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice ... of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors. a) The nature of the Convention right: is the right absolute or (as in the case of Art 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter. b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable. c) The extent to which the court has special expertise, for example in relation to criminal matters. d) Where the rights claimed are of especial importance, a 'high degree of constitutional protection' will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights of freedom of expression and access to the courts."
[53]In relation to that last sentence, I do not understand Dyson LJ to be implying that those two particular rights are the only rights which have been recognised by the European Court of Human Rights as being of a special importance. As I understand it, his Lordship intended them simply to be well-known examples of that genre.[54]In the present context, it seems to me that although the right to personal liberty is not one of the absolute rights, for example the rights in Articles 2 or 3 of the ECHR, it is nevertheless, as is clear from reference to Aksoy, one of the fundamental rights in the scheme of the Convention. It is also clear, it seems to me, that the realm of personal liberty is one in which the courts have at least as much expertise, if not more expertise, than the executive. It also seems to me that this sort of context is far removed from the context of social or economic decision-making, where it is usually inappropriate for the court to substitute its own views for that of the executive and a considerable degree of deference is appropriate to the democratically accountable executive, as Dyson LJ pointed out in Samaroo.[55]Finally, it seems to me that the context of personal liberty is one, as Abassi has made clear, and Lord Scarman made clear in Khawaja which English law has guarded with jealous care at least since the time of Edward I. It is therefore, in my view, one of the rights of high constitutional importance in which relatively slight deference to the executive is appropriate.[56]In the light of the authorities I have had to cite at some length, the test is one of proportionality, under Article 5(1)(f), and irrationality is not the appropriate test. Having said that, I accept, as I have to on the binding authority of Saadi, that the test is not one of necessity. However, to accept Ms Laing's submission that one end of the spectrum, namely necessity, is not available, is not to accept her submission that the only alternative left is to go right to the other end of the spectrum and say that arbitrary detention must mean irrational detention. It seems to me, having regard to the purpose of Article 5, that it is perfectly appropriate for the court to take the view that the doctrine of proportionality is relevant. It seems to me plainly to be relevant on the authorities which I have already cited. The reason why it may, I stress may, make a difference on the facts of a particular case, although it need not always do so in contrast to the test of irrationality, is that the doctrine of proportionality enables the court to assess the reasons for detention with a more critical eye, having regard to the weight given to factors that were taken into account by the executive. As is well known, traditionally the doctrine of irrationality does not normally permit the court to reassess the weight given to factors by the executive, subject only to the long-stop possibility that the executive has taken leave of its senses and acted, therefore, perversely.[57]I also bear in mind the frequently stated doctrine of Convention law that the rights in the Convention must be practical and effective, not merely theoretical and illusory: see, for example, in the context of Article 5 itself Conka at paragraph 46.[58]Finally, I also bear in mind in this context the correct approach to the Human Rights Act and Strasbourg jurisprudence which has been recommended by the Court of Appeal on at least two occasions. The first is in the Court's judgment in Aston Cantlow Parochial Church Council v Wallbank [2001] EWCA Civ 713, [2002] 51, where the Court said at paragraph 44:
"Our task is not to cast around in the European Human Rights Reports like blackletter lawyers seeking clues. In the light of s.2(1) of the Human Rights Act 1998 it is to draw out the broad principles which animate the Convention."
The second authority, which seems to me to be relevant, is The Queen on the application of Prolife Alliance v BBC [2002] EWCA Civ 297 2002 All ER 756, where at paragraph 34 of his judgment Laws LJ said this:
"The need to make good an autonomous human rights jurisprudence is promoted by a further consideration. Treating the ECHR text as a template for our own law runs the risk of an over-rigid approach. Travelling through the words of provisions like Article 10(2), with stops along the way to pronounce that this or that condition is met or not met, smacks to my mind of what Lord Wilberforce once condemned as the 'austerity of tabulated legalism' (see Ministry of Home Affairs v Fisher ... [1980] AC 319, at 328) [I understand that quotation 'austerity of tabulated legalism' in turn itself originates with the late Professor de Smith in a book written in 1964]. I accept of course that such a wintry process will be tempered by what I have called ... the strong pragmatic philosophy of the Strasbourg court. Even so, while great respect is to be paid to the way in which the ECHR is framed, and therefore to the structure of provisions such as Article 10, I think the court's duty in confronting the claims of free speech, and the claims that may be ranged against it, in a context like that of the present case is very far distant from any exercise of textual interpretation. We are dealing here with bedrock principles ..."
[59]Although I readily accept that that passage is to be found in the particular context of free speech, in the context of personal liberty it seems to me that here also we are dealing with "bedrock principles". It also seems to me, having regard to the approach recommended by Laws LJ, that one is looking to make good an autonomous human rights jurisprudence by reference to principles to be found animating the Convention rather than an over-rigid approach. The end result will be a flourishing of Convention principles which should take root in the fertile soil of our own long tradition of liberty, to which I have already made extensive reference.[60]Applying the principles which I have identified as being relevant under the Human Rights Act and in particular the principle of proportionality, in my judgment the decision to detain the claimant in the present case was unlawful as being contrary to Article 5(1). This is essentially for the reasons I have given above in relation to domestic law. Putting it in terms more shortly of Convention language, the state has a legitimate aim of ensuring compliance with its immigration controls. However, there was on the facts of this case no reasonable relationship of proportionality between the means chosen, in other words detention, and the legitimate aim in view. This is because it was accepted that (absent other factors) the claimant should not be detained once a formal notice of appeal had been lodged. The only reason he was detained in reality was that he was theoretically removable in that short interim period when an informal notice of intention to appeal had been given, but no formal notice had yet been lodged. Having regard in particular to the principle that Convention rights should be practical and effective, not theoretical and illusory, and also to the fact that one is dealing with the bedrock principle of personal liberty, in my view that was to take an excessively formalistic approach, even giving due deference to the judgment of the executive, which I do. Accordingly, the detention of the claimant in November 2002 was unlawful under Section 6(1) of the Human Rights Act. Conclusion[61]For the reasons I have given, this claim for judicial review is allowed, and I will hear counsel as to appropriate relief and any further direction that may be necessary for the management of the damages claim.[62]MS LAING: Can I just mention one or two matters. The first relates to just one passage (several inaudible words). It is shortly after your Lordship started to consider the first issue, and your Lordship recorded a concession from me that once a notice of appeal has been served, it would be against the policy to detain or continue to detain. Now, I think I did qualify that by saying "absent other factors," because there might be factors in the individual case --[63]THE DEPUTY JUDGE: Yes, that is a fair point.[64]MS LAING: I am just a little bit concerned because one knows the way people treat (inaudible) judgments about statute, and I wonder if you might be able to make a suitable qualification.[65]THE DEPUTY JUDGE: I am grateful for you drawing that to my attention. It is a fair point. What I can tell you is that when I come to revise my judgment, I will have, with the note of the shorthand writer here, the advantage of reading again this exchange and can revise my judgment in light of this.[66]MS LAING: I am very grateful for that indication. The second matter that arises is the question of permission to appeal.[67]THE DEPUTY JUDGE: Yes.[68]MS LAING: I have been given instructions to ask for permission to appeal both issues. As your Lordship is aware, the detention policy issue is under appeal in Nadarajah. I have tried to discover --[69]THE DEPUTY JUDGE: I am sorry, Ms Laing, to interrupt you. It just slightly surprises me that you are on your feet already because there is really the question first of what relief I should grant in the light of my judgment.[70]MS LAING: Yes.[71]THE DEPUTY JUDGE: Shall we deal with that. I do not know if you want to say anything about that.[72]Can I just say what I am thinking of doing. In the light of the fact that the order for the release from detention is plainly no longer necessary, although it was initially sought, it seems to me that the only relief you need is the declaration that the claimant's detention between 6th November and 15th November 2002 was unlawful, and if anyone wants to know why it was unlawful, they can read my judgment.[73]MS NANAYAKKARA: My Lord, yes.[74]There were a number of directions that I was going to apply for.[75]THE DEPUTY JUDGE: Well, it may be that for the proper management of the case for the damages claims, I may have to make some directions in a few moments. So far as relief is concerned, I will make a declaration, unless there is any objection from the Secretary of State, that the detention of the claimant between 6th November and 15th November 2002 was unlawful.[76]On costs, do you want to say anything about that?[77]MS NANAYAKKARA: My Lord, yes. We would seek a costs hearing. I have had an indication from my learned friend that if the hearing is set for six week's time, that would be convenient.[78]THE DEPUTY JUDGE: Well, first of all, as far as I am concerned, what you need from me is an order for costs against the Secretary of State, and I do not think that this --[79]MS LAING: My Lord, it is not. In fact, my learned friend is referring to consequent directions.[80]THE DEPUTY JUDGE: I see.[81]MS LAING: We have, in fact, discussed that.[82]THE DEPUTY JUDGE: Can we just pause -- I will take it in stages so it can be recorded in the court record.[83]The next order I will make, therefore, is that the Secretary of State is to pay the claimant's costs, subject to a detailed assessment, if not agreed. I assume you are on public funding? Yes. I will also order a public funding assessment of the claimant's costs.[84]Shall we deal next with the question of permission to appeal, because that may have an impact on what, if any, further direction I should make.[85]MS LAING: I am sorry for, as it were, hastening on in there.[86]As I was saying, your Lordship is aware that Nadarajah is already under appeal on this question.[87]THE DEPUTY JUDGE: Yes.[88]MS LAING: There are a number of issues in Nadarajah, one of which is the other place issue. That is being heard first with a number of other cases that raise that same issue on 16th May, I understand. The detention issue is waiting behind that appeal, and I understand there is not a date for it.[89]THE DEPUTY JUDGE: I see.[90]MS LAING: Stanley-Burnton J did grant permission to appeal on the detention issue and I think it is clear from the terms of the judgment that he did not find it an easy question to decide. So for those reasons, I would submit it is appropriate.[91]THE DEPUTY JUDGE: I do not think I need to trouble you much longer. Unless it is resisted, I have to say that I think this is a case in which it is appropriate for permission to appeal to be granted.[92]Do you want to say anything about that Ms Nanayakkara?[93]MS NANAYAKKARA: My Lord, we do oppose the application for leave to appeal. It was a comprehensive judgment. The facts are very straight forward and an appeal has no prospect of success.[94]THE DEPUTY JUDGE: Well, thank you for that. I am going to grant permission for appeal on this case on both issues. It seems to me that while I hope I have it right, I can not possibly say there is no real prospect of success in an appeal of the Secretary of State. I also bear in mind that Stanley Burnton J has already in Nadarajah granted permission to appeal, albeit not on identical facts but in relation to a judgment which I have thought it right to follow, and we may both be wrong. Finally, I bear in mind that I had to say necessarily quite lot about Article 5 and whether the test is proportionality rather then rationality, and I may again be wrong about that. It is right that the Court of Appeal, if the Secretary of State wishes to take up this permission, should have a chance to pronounce on that important question.[95]MS LAING: I am very much obliged to your Lordship. The issue then is whether it is appropriate to make any direction at this stage, or whether we should wait until appeal. What we had been discussing yesterday evening before your Lordship gave judgment was whether this is a case where it would be possible for both sides to reach a negotiated settlement, and I will be asking, in any event, for a period, which I think my learned friend agrees with, of six weeks in order for those discussions to take place, with liberty to apply at the end of that period if those discussions do not bear fruit, because obviously we are keen to avoid incurring any further unnecessary costs if that is possible.[96]THE DEPUTY JUDGE: Well, it seems to me that in a case of this kind, unless anything dramatic or surprising happens, there is likely to be an appeal.[97]MS LAING: Yes. Obviously, I cannot say.[98]THE DEPUTY JUDGE: No, I appreciate that. It seems to me that although often the court would wish to obtain some judicial management control of the future direction of the case, I do not think in this case, subject to anything you may want to say to me, that it is necessary or appropriate to start making detailed directions at this stage. I think that all I need to do, and this does not require any formal direction, is simply indicate that if the appeal does not take place, then it should come back to the court for directions as soon as possible. I am quite happy to indicate that that should be within six weeks of any decision not to appeal.[99]MS LAING: I am very grateful for that, my Lord.[100]THE DEPUTY JUDGE: Or if there is there is an appeal, then direction may well be made by the Court of Appeal at the end of their judgment, and I think it is probably inappropriate for me to anticipate what the circumstances then prevailing might be. Unless either of you wants to say anything more about that, I am not proposing to make any further detailed directions.[101]MS LAING: My Lord, I am grateful.[102]THE DEPUTY JUDGE: The court will draw up the order in the normal way. A note will be made on the file about what I said about possible future direction in this case, but I am not making any formal directions today in relation to the damages claim. I should also make it clear that I do not think it is necessary, unless you want to persuade me to the contrary, that it should have to come back before me in relation to damages.[103]MS LAING: My learned friend may have something to say about that. (several inaudible words) can I just raise one further matter before I sit down, I might forget otherwise.[104]THE DEPUTY JUDGE: Certainly.[105]MS LAING: Might we ask your Lordship to direct that the transcript be expedited because that will obviously help all sides.[106]THE DEPUTY JUDGE: Yes, very well. I will direct that the transcript in this case should be expedited.[107]MS LAING: I am very grateful.[108]THE DEPUTY JUDGE: Did you want to say anything else?[109]MS NANAYAKKARA: My Lord, yes. In my submission, it would be very helpful if your Lordship could have the matter of costs reserved to yourself. It is a complex matter and my Lord has demonstrated a strong understanding of the facts and in my submission it would be more helpful if it were reserved to you.[110]THE DEPUTY JUDGE: I hear the submission made but I am not going to direct that this case has to return to me. It seems to me to be a matter appropriate for the Administrative Court generally, and it is not necessary in the interests of justice that the damages claim, if it ever does come back to this court, should have to be heard by me.[111]Is there anything else anyone would like to raise?[112]MS LAING: No, my Lord.[113]THE DEPUTY JUDGE: I thank you and through you, can I thank those counsel who are not present today, particularly Miss Giovannetti, who of course was in the case earlier. I am very grateful to everyone.

Cited in 1 later judgment