FP, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2235 (Admin)

Case No CO/5601/2006[2006] EWHC 2235 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 18th August 2006
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF FPClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR IAN MACDONALD QC and MR SADAT SAYEED (instructed by Messrs Hayat & Co) appeared for ClaimantMR GERARD CLARKE (instructed by Treasury Solicitor, London SW1H 9JS) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: The claimant and her two small children came to this country together with her husband from Turkey on 22nd July 2002. In fact they had come via Germany, and as it later transpired had made an application for asylum in Germany which had been rejected. In any event, on arriving here they made an asylum claim. They went to live with the claimant's brother. They were interviewed on 18th November 2002. Some time thereafter it was discovered that they had claimed asylum in Germany. Accordingly, in May 2003 they were informed that they would be returned to Germany in accordance with the terms of the Dublin agreement.[2]At that stage, whether for that or other reasons, the claimant's husband deserted her, although she was pregnant with their third child who was born on 1st December 2003. She attended at the Home Office in July 2003 and was told that she should sign on monthly. It seems that she failed to report in accordance with the conditions that had been imposed. But she continued to live at the same address, and indeed she received support from NASS which, of course, is part of the Home Office. So quite why the Home Office treated her as an absconder it is a little difficult to know; or rather perhaps it is not, because it is yet another example of one department in the Home Office not being aware of what another was doing.[3]In any event in September 2004, the claimant's new solicitors, Hayat & Co, wrote to the Home Office saying that her husband had abandoned her. As a result, she continued to live at the address given and to sign on, as she should have done, that is to say to report monthly. Of course by now there was a third child.[4]The Home Office apparently hoped that the claimant's husband would be discovered, and that she and he and the family could be returned to Germany together. However, this did not happen. He did not turn up. In the meantime, in September 2004, as part of the letter that the new solicitors wrote, it was indicated that she was making a claim for asylum in her own right, because before that she had been dealt with as a dependant of her husband.[5]As I say, no steps of which she was aware were taken between September 2004 and July 2006 against her. It appears that some time in June a decision was made that, notwithstanding the inability to locate her husband, the claimant should, together with the children, be returned to Germany. The German authorities were notified and they agreed that they would receive her in accordance with the Dublin agreement. This meant that her application for asylum had to be disposed of. A letter was prepared, although not at that stage served, which indicated that her claim was one which would not be dealt with here, and that she would be returned to Germany, in accordance with the Dublin Convention. There was no right of appeal against that decision.[6]On Sunday 2nd July the claimant attended the Home Office in accordance with her obligation to report. She and the children were then detained and were told that they would be removed on a flight to Stuttgart leaving at 7.50am on Wednesday 5th July. Of course on a Sunday there was no real expectation that she would be able to contact or give instructions to a solicitor. Indeed it was not until the following day, the 3rd, that she was able to contact her solicitor, Mr Hayat. He made representations on that day by fax. He faxed those representations to the unit which was concerned with enforcement or removal, which is based at Communications House. He received a reply on the following day, the 4th, from a different unit, that is from what is called the Third Country Unit, which was concerned with deciding whether there should be removal to a particular country, not the mechanics of how that removal was to take place. That reply stated that the matter was indeed with the Third Country Unit, and did indicated that there was no intention to defer removal and it was said that the arrangements would stand.[7]Having received that reply, Mr Hayat faxed at 3.25pm that afternoon a response. In that he said, among other things, this:
"It is without question that the United Kingdom has not adhered to the provisions under the Dublin Convention, and it would therefore be unlawful to seek to transfer our client on the basis of this very breach."
That was a reference to the delay:
"We would inform you that unless you defer removal directions, we will have no alternative but to seek a Judicial Review of your decision."
[8]My Hayat received a reply to that from a Ms Beadle, who was a Higher Executive Officer in the Third Country Unit, which was faxed to him at 5.05pm on 4th July. She said that there was a provision in the Dublin Convention allowing delay, and that since the extension of time had been applied for back in June 2003, when the German authorities were first approached, the return would be lawful. What was said in the last sentence was this:
"Your client's removal will go ahead tomorrow as planned unless you obtain a Crown Office Reference Number."
The absurdity of that suggestion is obvious, because by 5.05pm the Court Office here had closed and there was no conceivable prospect that a Crown Office number could be obtained.[9]In fact, the whole manner in which this removal had been dealt with was contrary to the Home Office's own internal instructions. There was an operational instruction, which was in force at the material time, which was dated 12th April 2006. The subject of it was "Threats and applications for Judicial Review in removal cases". It referred to Chapter 44 of the Manual and indicated that it was intended to replace it, but that until it was replaced it must be applied. The High Court had been told that it was the current policy, and action outside that policy would be likely to result in IND being found in contempt of court. It said at paragraph 3:
"3. This instruction seeks to ensure that persons subject to enforced removal have sufficient time prior to removal to lodge an application for Judicial Review. Until further notice removal will normally be deferred for 3 working days (from the point at which the threat is received) if a Judicial Review is threatened and removal must be cancelled when it is confirmed that Judicial Review proceedings have been initiated. 4. Therefore until further notice staff must refer all cases concerning last minute threats or applications for Judicial Review to the Operational Support and Certification Unit ... who will consider the case under this policy."
Then it went on:
"5. This interim instruction does not affect the current arrangements for non-suspensive appeal (NSA) or Third Country Removal Judicial Review cases."
[10]I should refer to Chapter 44 of the manual. The relevant provision is to be found in 44.2.3, which relates to third country cases. In Dublin Convention cases, of which this was one, this is stated to be the required approach:
"Solicitors are required to institute judicial review proceedings by lodging papers in complete form with the Administrative Office and obtaining an Administration Office reference within 5 working days of the notification to the applicant of the intention to remove him to another Member State (i.e. at the 'refusal' stage). A mere threat or expression of intent to seek JR does not count as instituting proceedings. Where proceedings are threatened or instituted after that time, removal directions will not normally be deferred, unless directed by the Court (by injunction) in a particular case."
[11]It is obvious that to detain on a Sunday with a view to removal early on a Wednesday morning is not to give the five working days which are needed in order to comply with 44.2.3. When she gave evidence before me, Ms Beadle seemed to believe that what was required was three days. But whether or not the detention with a view to removal in those circumstances was a breach of the manual, the fact is that once the threat of judicial review had been made by the solicitor on the Tuesday, the removal ought then to have been deferred. That was because the operational instructions required three working days to be given, to enable the solicitor to lodge a judicial review application.[12]Whatever may have been the belief of the officials who were dealing with this, the fact is (as has since been recognised) that there was merit in this judicial review application. Indeed, it has been accepted that permission should be granted on the basis of delay. There is pending before the Court of Appeal a case which may decide the effect of delay one way or the other. However, this was not by any stretch of the imagination a case of an abusive application, which is of course the situation which exists (as one must recognise) in many last-minute applications to the court.[13]Accordingly, there was a serious failure by the Home Office to follow its own guidance. That did not of itself of course cause a breach of the injunction that was eventually granted, but it enabled the difficulties which were later caused to exist. The situation should never have arisen.[14]What the solicitor did as a result was to seek an injunction from the duty judge, who was Treacy J. He granted that injunction at 7.25 that evening. The solicitor having received copy of the injunction, faxed it to the Third Country Unit with which he had been dealing. Ms Beadle had not seen fit to inform him that that unit would not be staffed after 5.00pm, and did not give him any alternative unit to contact if an injunction was obtained, although she knew that the threat had been made.[15]The result was that Mr Hayat perfectly properly sought to communicate with the Home Office with whom he had been dealing. He sent the fax, but it sat in their fax machine as there was no one there to receive it. So the arrangements in the Home Office were defective, and yet again one department did not properly communicate with another department in dealing with this matter.[16]Around 4.00am the claimant and her children were picked up by Securicor in order to be transported to the airport. She was aware, because her solicitor had told her, that he had obtained an injunction. She therefore was, to say the least, most concerned at what was happening. She informed the escorting officer that they could not do this because it had been prohibited.[17]As a result, at about 5 o'clock in the morning when she was on her way to the airport, the claimant telephoned the solicitor on his mobile. On his letter heading there is, as is often the case with solicitors, an out-of-hours number given, which was in fact his mobile number. She phoned that number, and she passed the telephone over to one of the escorting officers, a Mr White.[18]Mr White told me, when he gave evidence, that he was informed by the solicitor, to quote his words, that "the job had been cancelled". He said he understood from that that there had been a court order and assumed that it was a judicial review, although he was not explicitly told, he said, by the solicitor that an injunction had been obtained.[19]Mr Hayat's evidence was that he did make it plain and did tell Mr White in terms that an injunction had been obtained, and also informed him of the name of the judge and asked him to check the matter that way.[20]I am afraid that I find it difficult to accept Mr White's version. It seems to me that the language "the job had been cancelled" was language which was used, as he accepted in cross-examination, by Securicor and by those who were escorting and is not the sort of language that one would expect from the solicitor. Equally, it would be strange if the solicitor did not inform the officer as to what had indeed happened, because he would be anxious to ensure that the person in charge who had the power to stop the removal would do so. Therefore, it was essential that he should give the fullest information.[21]In fact Mr White indicated, perfectly properly and perfectly understandably, that he did not have the necessary responsibility or power to take any particular action. Accordingly, he contacted his coordinator or supervisor (I am not sure what is her precise title) a Miss Smith. She told me that she was informed that there were judicial review proceedings. She was not clear whether it was a threat or an actuality. She said at one point in her evidence that she understood from Mr White that there was some sort of a court order in being. At another time she said that she was not sure that it was that, it may be that there was just a threat of judicial review. It seems to me, again, that she clearly should have appreciated, and I am satisfied did appreciate, that what was being said was that there was a court order in being, in force, and so it was being stated by the solicitor that the removal should not go ahead.[22]In any event, Miss Smith spoke to the senior immigration officer who was responsible and who did have the power to stop the removal, if satisfied that that is what should happen. That officer was a Ms Metcalf.[23]Ms Metcalf received this notification some time in the relatively early hours, certainly by it would seem 6 o'clock in the morning. She says that there was no confirmation. She looked at the fax machines in the office, but not surprisingly found no fax since it was not the office to which Mr Hayat had sent the notification of the injunction. She also told me, and I recognise, that it has been known for assertions to be made that an injunction has been obtained and that an individual is a solicitor and that those assertions are not true. Accordingly, it is usually considered necessary that there should be some written confirmation of the existence of an injunction.[24]While I fully understand that policy, it must be recognised that sometimes in situations such as this it is impractical, where one is dealing with matters overnight, for there to be anything in writing. Confirmation can always be obtained by telephoning the security office at the Royal Courts of Justice, because they are informed by the duty judge what action has been taken in relation to any particular application. That course was not adopted.[25]Furthermore, there was access to the solicitor's out-of-hours mobile. That course was not adopted. What Ms Metcalf did was effectively nothing of any practical use. She appreciated that no one would be at duty at the Third Country Unit until 7.30am, which of course was only 20 minutes before the plane was due to leave and so was leaving it frankly too late. However she suggested that whoever was there, and indeed she contacted whoever attended, to see whether they could get in touch with the solicitors. They had the letter from the solicitor's letter heading, but extraordinarily did not ring the out-of-hours mobile number, so it was hardly surprising that they were unable to contact the solicitor.[26]In the meantime, the escort officer had yet again telephoned Ms Metcalf, by now it would seem on the plane, to ask whether the removal should go ahead. This was undoubtedly somewhat unusual, and reflected the concern that they had been told that there was an order. Ms Metcalf simply said that she had heard nothing to the contrary, and the removal should go ahead; and it did.[27]Fortunately it was not a removal to Turkey, the country from which the relevant asylum seeker was seeking asylum, but was to Germany. Accordingly, it has not been difficult to return the claimant and her family to this country and that has, I am glad to say, been done. But of course to remove in breach of an injunction is, as the Home Office recognises, a very serious matter.[28]I have set out the history in some detail. I was glad to hear from Mr Roberts, who is the Director of the Enforcement and Removals Directorate, that steps have now been taken to ensure that a dedicated telephone number is provided and its existence is publicised, so that there is a number that any solicitor knows he can contact if, in future, there is a need to obtain and there is actually obtained an out-of-hours injunction to prevent a removal.[29]There was clearly in this case a failure to provide a proper system which caused, in some part, the breach of the injunction. Mr Hayat told me that he did seek to contact the Enforcement Directorate at Communications House, but was unable to get through. The telephone number that he contacted simply indicated that it appeared to be a fax number and was not connected to any manual operator. It may be unsurprising, because I gather that Communications House is not staffed out of normal office hours. Be that as it may, Mr Hayat did his best to communicate with the Home Office. Their system was so defective that he was not able to get in touch with anyone to give the necessary information in order to avoid the removal. Added to the lamentable lack of any proper system, there is added the failure by Ms Metcalf to take reasonable steps, and steps that she clearly should have taken, in order to check the position when she was given the information that she was, particularly when she was led to believe at the very least that there might well be a court order in force which prevented the removal. That was in the light of the solicitor's threats that that was what he was going to do.[30]When the matter first came before me, I directed that an explanation should be given for the breach of the injunction, since it appeared to me to be possible that an individual involved might be guilty of contempt to such an extent that deserved punishment by the court. Ms Beadle's shortcomings enabled the difficulties which led to the need for a late application to be made to the duty judge, but, as I have already said, were not causative of any breach. Ms Metcalf in my judgment acted with a signal lack of competence. However, she did not know of the existence of the order and, despite her undoubted negligence and failure to measure up to the standards to be expected of a chief immigration officer, I am not persuaded that she deliberately breached any order or that her conduct was so reckless, if that is a proper basis for punishing for contempt, as to justify singling her out for specific action.[31]The practice of detaining with a view to removal within a short time, particularly when it is known that there have been representations from a solicitor, can lead to the need to seek an order from the duty judge out of hours, because insufficient time is given to enable proper advice to be obtained and action to be taken. There was then no proper system to ensure that the relevant enforcement officers knew of the order in question. The refusal to accept that such an order exists without confirmation in writing or checking with the solicitor adds to the problems.[32]The court is engaged in discussions with IND to try to set up a system which will give sufficient information and time for judicial review, if that is appropriate, to be applied for. Such a system, if known to be operated properly, will I am sure help to avoid the need to make applications to the duty judge, and will enable the duty judge to appreciate that if such an application is made, it is indeed likely to be without merit. If the system has been applied properly, then due time and due opportunity will have been given for judicial review to be sought at an earlier stage. Those discussions are still ongoing. It is important that the dedicated telephone number should also be available to the duty judge, so that, again, the information can be passed on that way.[33]In all the circumstances, I am satisfied that there is substantial blame to be attached to the Home Office for the breach of the injunction which occurred and which should not have occurred. They have, through Mr Roberts, apologised. It seems to me that the appropriate order to make in all the circumstances is that the Home Office pay the claimant's costs on an indemnity basis, which will cover the action taken by the solicitor in seeking the injunction from the duty judge and in attending before me in connection with the contempt proceedings.[34]So far as the application for judicial review is concerned, I have granted permission on the delay ground and have ordered what is called a rolled-up hearing in relation to the allegation that the detention was unlawful. The costs in relation to that and the institution of the judicial review proceedings will be dealt with in the normal way. So that the indemnity costs relate only to the obtaining of the injunction and to the proceedings in relation to that, including both appearances before me and, of course, any preparation for those hearings.[35]I hope that clarifies the position, Mr Clarke, so far as the ambit of the costs orders is concerned.[36]MR CLARKE: That is very helpful.[37]My Lord, just one matter. At the beginning of the judgment, a note for the transcriber, my Lord incorrectly referred to the Sunday when the claimant was detained as the 3rd, it was the 2nd.[38]MR JUSTICE COLLINS: I realised I think that I had said the 3rd by mistake. Yes, of course, it is Sunday the 2nd.[39]MR CLARKE: Yes.[40]MR JUSTICE COLLINS: Thank you very much. Thank you Mr Clarke for attending.[41]Can someone behind you pass on the indication that I think that the court should also receive the dedicated number, so that again the court is able to make the necessary contact.[42]MR CLARKE: I think that is a very good idea.

MR JUSTICE COLLINS: Thank you. ______________________________