E & Ors, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 3208 (Admin)

Case No CO/6549/2006Case No CO/4537/2006[2006] EWHC 3208 (Admin)IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 20th December 2006
Before
THE HONOURABLE MRS JUSTICE BLACK
Between
THE QUEEN ON THE APPLICATION OF E & othersClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Hugh Southey (instructed by Refugee Legal Centre) for ClaimantMr Steven Kovats (instructed by the Treasury Solicitor) for Defendant
JudgmentMrs Justice Black :
[1]The four claimants in this case are not named in this judgment, nor is the country of which they are citizens. Anonymity is to be preserved and accordingly there is to be no reporting of any issue in the case in a manner that may identify the claimants.[2]The claimants are a family comprising a husband (H), wife (W) and two children, a son of 22 (“the son”) and a daughter of 18 (“the daughter”). The son has a rare and serious medical condition that affects him physically. He also has a degree of mental incapacity.[3]The family arrived here as visitors in April 2005 with leave to enter for 6 months. On 19 September 2005, the son claimed asylum. On 20 September 2005, H claimed asylum on behalf of himself, W and the daughter. The son had asked to be a dependent on H’s asylum claim because of his mental incapacity but was required to claim in his own right because he was an adult.[4]In November 2005, the asylum claims were refused. All members of the family appealed. For reasons that have not been explained, the son instructed different solicitors from the rest of the family. He was represented by the Refugee Legal Centre and the rest of the family by Switalskis. However the same counsel was instructed to appear on behalf of all of them before the Immigration Judge.[5]The Immigration Judge’s decision was promulgated in January 2006. The Judge was not satisfied that the family were of any interest to the authorities in their country of origin and considered that they had not established a well-founded fear of persecution. He also dismissed the human rights appeals made by all family members. In so far as they had relied on Article 3 ECHR, he found no evidence that they would be subjected to torture or inhuman or degrading treatment if they were returned. He thought it unnecessary in the circumstances of the case for him to consider the Article 8 claim that had also been advanced.[6]It is perfectly clear that the Immigration Judge proceeded upon the basis that the circumstances on which the son relied for his asylum claim were precisely the same as those relied upon by the rest of the family. He said in terms:
“Although he [the son] has a separate asylum claim, his claim depends on his father’s situation.”
[7]Following the Immigration Judge’s dismissal of the appeals, the two firms of solicitors representing the family then separately filed applications for reconsideration. The son’s solicitors sent their application with a covering letter asking that his case continue to be linked with his family’s applications. On 2 February 2006, a Senior Immigration Judge, dealing with the whole family together, refused to make an order for reconsideration.[8]Applications were therefore made to the High Court. Once again they were filed separately, that of H, W and the daughter on 14 February 2006 and that of the son on 15 February 2006. Switalskis sent with their application a covering letter which explained that the case was linked to the son’s case.[9]On 22 March 2006, Owen J refused the application of H, W and the daughter. However, on 23 March 2006, unaware of Owen J’s decision or even of the fact that the rest of the family had made an application to the High Court, Mitting J ordered reconsideration of the son’s case on the basis that the Immigration Judge may have made material errors of law and there was a real prospect of success if the appeal were to be reheard.[10]The defendant’s Appeals Determination Management Unit received Owen J’s order on 22 March 2006 and sent a copy to the Immigration and Nationality Directorate. It seems to have found its way onto the relevant IND database without any difficulty on 23 March 2006. Switalskis were also notified. It may have been in response to this that on 31 March 2006, they indicated to the Immigration and Nationality Directorate that they were no longer acting for the family.[11]The order of Mitting J was received by the Appeals Determination Management Unit on 23 March 2006. It does not seem to have been sent out to the RLC until, at the earliest, 18 April 2006. The information was not disseminated promptly to the Immigration and Nationality Directorate either. Julie Grugel of the IND says in her first statement:
“This decision was promulgated on 18 April 2006 but not linked to the Home Office file until 3 May. A hard copy was not sent by ADMU to the IND or the Claimant’s representatives……An entry was only made [on the IND’s database] on 18 April recording the outcome of the 23 March reconsideration.”
[12]What this meant in practical terms was that although the Home Office had in fact had notice of the order of Mitting J from 23 March 2006, those making decisions about the removal of the family thereafter were unaware of it because it was not on the relevant computer database. On 5 April 2006, they prepared a removals check sheet for the family which identified that the son had a separate asylum claim and had had his request for reconsideration refused on 6 February 2006 (the date in Ms Grugel’s statement which must be an inaccurate reference to the decision on 2 February 2006 of the Senior Immigration Judge which was sent out on 8 February) but made no mention of Mitting J’s order nor of the fact that the son had a legal representative. The son was treated as if his appeal rights were exhausted from 20 February 2006.[13]On 9 April 2006, a “pastoral visit” was made to the family to gather information in preparation for their removal. On 10 April 2006, the IND set removal directions for the family. At 6.20 a.m. on 14 April 2006 (Easter Bank Holiday Friday), the family were taken into detention in preparation for their removal which took place at 10 p.m. on 16 April 2006 (Easter Sunday).[14]Since their removal, the family have been in their country of origin. It is said on their behalf that they are in hiding because of their fear of persecution.[15]The Secretary of State concedes that the removal of the son from this country on 16 April 2006 was unlawful. The most obvious reason for this is to be found in s 78, Nationality, Immigration and Asylum Act 2002 which provides that an asylum seeker may not be removed from the United Kingdom whilst he has a pending in-country immigration appeal as the son does by virtue of the reconsideration ordered by Mitting J under s 103A(1) which has not yet been carried out. It is also conceded that the detention of the son was unlawful. The only basis on which it could have been justified in this case was to effect the removal of the son and no lawful removal was imminent. It is further conceded that detaining the son in these circumstances amounted to a breach of Article 5 ECHR. The Secretary of State does not concede any breach of Article 3 ECHR.[16]The defendant has apologised for the error in removing the son. At all times, he has expressed himself willing to facilitate the return of the son to the United Kingdom. For reasons to which I shall come, he denies that the detention and removal of the other members of the family were unlawful but he has nevertheless offered to facilitate their return too.[17]So far, it has not proved possible for any of the family to return here. Their passports were handed by their escort to the authorities in their country of origin upon their return there and have been retained for reasons which are not known. The IND has consulted with the Foreign and Commonwealth Office as to how to proceed. It is plain that they are exercising a degree of caution in approaching the problem, as they must bearing in mind that the outcome of the reconsideration ordered by Mitting J may be an acceptance that the son, at least, has a well founded fear of persecution. A number of possibilities have been raised by those representing the family and considered. They include temporary documents, EU letters, Certificates of Identity, and even the issuing of British passports. An impasse has however been reached.[18]The defendant asserts that there is no credible evidence from the family that any of them would be at real risk of persecution or adverse treatment by virtue of asking for their passports back and has consistently been of the view that the best course is for them to do this so that they can leave their country of origin in the normal way. Even if there is a degree of risk in this course, the defendant says that it is the only possible way forward because other options either involve illegality or would attract the suspicion of the authorities in the country of origin.[19]The family do not consider it reasonable that they should be required to approach the authorities whom they fear wish to persecute them. Their view is that the safest route of departure is to cross the land border into a neighbouring country (Y) without passports, employing a guide or agent for the purpose. They propose then to leave Y using Certificates of Identity which the defendant is prepared to make available to them. The difficulty with this course is that they do not consider it safe to embark upon it without an assurance that they will be able to leave Y for the United Kingdom. Their anxiety is that if they reach Y and are then returned to their country of origin, their position there will be even worse. Accordingly, they wish the defendant to approach the authorities in Y in advance in order to ensure that the way is clear. The defendant is not prepared to do this because he considers that it would involve the government in assisting the family to break the laws of their country of origin.[20]It was as a consequence of the defendant’s failure to take effective steps to return the family that judicial review proceedings were commenced. Permission was granted to the son on 27 June 2006 and to the rest of the family on 31 August 2006.[21]On 25 July 2006, Mitting J granted interim relief in the son’s case. I have seen a copy of his judgment which has been very helpful. The son sought to have funds provided by the defendant in order that he could instruct and pay an agent to facilitate his departure from his county of origin without a passport. The position of the defendant was, as Mitting J recorded it, that:
“7. ….the British Government cannot assist a national of another country to break the laws of that country and cannot be seen to be or to be thought to be doing that. For one government to conduct itself in such a way in relation to the laws of another state would, Mr Kovats submits, infringe rules of international comity. In my judgment, he is unquestionably right in that submission. It would not be a proper order of this court for me to require the Home Office to do anything which would deliberately infringe the domestic laws of another country.”
[22]Mitting J considered it proper, however, to make an interim award of damages of £4,000 for the son’s “two to three day detention”.

The issues before me

[23]The only further interim relief presently sought on behalf of the son is an order requiring the defendant to approach the authorities in Y with a view to securing his return through that country. Similar relief is sought on behalf of the rest of the family but they also seek interim damages for detention. It is common ground that if I find that their detention was unlawful, then damages of £4,000 each would be appropriate.[24]The issues in the hearing have accordingly been: i) Whether the removal of H, W and the daughter was unlawful and/or a violation of Article 3 and/or Article 5 ECHR ii) Whether the detention of H, W and the daughter was unlawful and/or a violation of Article 5 ECHR iii) Whether I should award interim damages to H, W and the daughter iv) Whether the mandatory order sought by the whole family in relation to the approach to the authorities in Y is a proper order and whether it should be granted. In relation to the son, the argument is not whether the Home Office can be ordered to take steps to get him back to the United Kingdom but whether the particular steps proposed are proper ones to order the government to take. In relation to the rest of the family, not only is that point taken, but the defendant also contests the entitlement of the family to any relief at all because he asserts that both their detention and their removal were lawful and he has no duty to assist them to return to this country.

Was the removal of H, W and the daughter lawful?

[25]On behalf of H, W and the daughter, it is submitted that their removal was unlawful and/or a violation of Article 3 and/or Article 5 ECHR. Given that Owen J’s order brought the appeal process to an end in relation to them, they are not in the same position as the son and, in particular, their removal was not prohibited by s 78 of the 2002 Act. Their argument is built instead on the following propositions: i) The Secretary of State had a discretion whether to remove them, notwithstanding that their appeal rights had been exhausted by virtue of Owen J’s order. I accept this. ii) He had to exercise this discretion in accordance with normal public law principles, taking into account relevant considerations. This is not a contentious proposition and I accept it. iii) As the defendant agrees, Mitting J’s decision was not taken into account when the decision to detain and remove the family was made. iv) The decision of Mitting J was a relevant consideration and the failure to consider it invalidated the defendant’s decision to remove the family, rendering it unlawful. This proposition is not accepted and I shall examine it in more detail.[26]The defendant argues firstly that the decision of Mitting J was not a relevant consideration for the Secretary of State because it was made in relation to the son’s case and could have no application to H, W and the daughter whose claim had finally been determined by Owen J. That, it seems to me, is too restrictive a view of the circumstances which should have been taken into account in exercising the discretion whether to remove H, W and the daughter from the United Kingdom at this particular juncture. The decision of Owen J was clearly a relevant factor that had to be taken into account but it was not, in my judgment, the only one and it was not determinative of the removal question on its own. Why Mitting J’s decision was relevant too should be apparent from my next paragraphs.[27]In the alternative, the defendant argues that if relevant at all, Mitting J’s decision was only relevant in the determination of whether steps should be taken which would split the family up and that as the family was not actually split up, it does not matter that the decision maker was unaware of it.[28]There is an air of unreality about this submission. The reason why the family was not split up is because, unlawfully, the son was also removed. If he had not been, the departure of the rest of the family would have split the family up.[29]Mr Kovats argues that the family had not in fact viewed themselves or been treated by others as a single entity during the course of their immigration proceedings. He points out that the son had been required to make a separate claim at the start and had instructed separate solicitors and taken his claim separately through the appeals process. Against that, as far as I know they were living together at all times whilst in the United Kingdom and there is no evidence that they are living separately now. The son had originally sought to make his immigration claim as a dependent of the family and it was only on the insistence of officials that he applied separately. Why he instructed separate solicitors is not known but matters nevertheless proceeded before the Immigration Judge with a single counsel instructed and with general acceptance that this was a family unit (see excerpts from Immigration Judge’s decision at paragraphs 32 and 33 below). The claims were also dealt with as an entity by the Senior Immigration Judge and the Administrative Court office was also notified by Switalskis’ letter of the connection between the claims. Since the removal of the family, the Home Office itself has attempted to secure the return of all of them to this country, albeit that, on their case, this is for pragmatic reasons only. In the circumstances, the argument that the son, H, W and the daughter do not form a family and/or that the Secretary of State was not obliged to consider them as a unit is not tenable.[30]Paragraph 11 of the defendant’s own Family Removal Policy clearly recognises that removing part of a family is something to be done only following a conscious and properly considered decision. It provides:
“Splitting a family Where it is proposed that RDs [removal directions] are given which would result in only part of the family being removed, authority must be sought at AD [Assistant Director] level.”
[31]In this case, nobody even knew that the decision they were making should have included consideration of whether to remove only part of a family, as the decision makers were completely unaware that the son was entitled to stay. In an attempt to dissipate some of the air of unreality that attended this case, I asked Mr Kovats what the decision about removal of the rest of the family would have been had the existence of Mitting J’s order been known to the decision maker. He was not surprised by the question but was unwilling to be drawn into giving a concrete answer. He agreed that the court was entitled to draw inferences about what would probably have happened and conceded that he could not submit that it would be wrong to infer from all the material available that the decision would have been to defer removal for a period. It does seem to me very likely that that would have been the course adopted but, of course, that may not have much bearing on the legal question whether the decision which was actually taken was properly taken.[32]Had those making the removal decision known of Mitting J’s decision, they would have had to strike a delicate balance, not only because of the simple fact that they were splitting up a family but also because of the disability of the son. Although he accepts that a degree of dependency exists, the defendant does not accept that the son was wholly dependent on the rest of the family. The defendant points to the fact that the son’s Article 8 appeal was dismissed by the Immigration Judge and he did not seek a reconsideration of that. This is not surprising, in my view. Counsel then acting for the whole family had advanced the Article 8 claim on two bases, firstly because of the son’s medical condition and secondly because of the implications for him in the event that he was returned to his country of origin without his parents and sister. The Immigration Judge found that the son would be able to receive adequate medical treatment in his country of origin which dealt with the first limb of the argument. As to the second limb, he plainly did not contemplate for a moment that the family were going to be split up and accordingly said:
“The [son] will be returned to [his country of origin] with his parents and sister. He is fortunate that he will have the loving support of his family for his unfortunate condition both in this country and in [his country of origin]. In the circumstances it is not necessary for me to consider Article 8 of the ECHR.”
[33]It is far from clear that, had he turned his mind to it, the Immigration Judge would have considered that the son could have managed to live independently without his family. Indeed, such indications as there are of his view suggest that he accepted there was a degree of dependency. The passage that I have quoted in my preceding paragraph is one such indication. In addition the Immigration Judge said at paragraph 35: “With regard to the second Appellant’s medical condition, he does depend on his parents for the reasons set out in Dr Belchetz’s letter.” [I have not been shown that letter][34]The possibility that removing H, W and the daughter might have amounted to an interference with the son’s Article 8 rights by depriving him of their support should have been considered in making removal decisions about H, W and the daughter in my view. It would not have been determinative, of course, but it needed to go into the balance to be considered together with the counterweight that the proposed removal of the rest of the family would be in pursuance of a lawful immigration policy.[35]The decision of Mitting J also had, in my view, further potential implications which should have been taken into account by the decision maker in determining whether to remove H, W and the daughter. The circumstances which had been urged as the foundation of a claim for asylum were precisely the same for the son and for the rest of the family. Mitting J set out the errors of law in the Immigration Judge’s asylum decision which he considered to be arguable as follows:
“1) He failed to address the objective evidence that the risk to the appellants on return to [their country of origin] had increased significantly since the election of [name] in [date] 2) He made no finding … on the applicant’s assertion that his house had been confiscated by the ….authorities – a fact which, if true, might indicate that the family would be of interest to them on their return.”
[36]Nobody knows what the outcome of the reconsideration ordered by Mitting J will be but one possibility is that it will lead to the conclusion that the son has a well-founded fear of persecution. Let us suppose, for the sake of argument, that the reconsideration had already been carried out and that conclusion reached by the time the decision was being made about removal of the rest of the family. I do not see how, in those circumstances (and particularly given the anxious consideration that must be given to asylum cases), a decision could properly be made on that removal without taking into account that it had been accepted that the son was entitled to asylum on the basis of the very facts upon which the rest of the family had also relied. Working back from that position and considering the position pending the reconsideration ordered by Mitting J, the possibility of an ultimate acceptance of the son’s asylum claim must in my view be a relevant consideration for the decision maker. Owen J’s order is a relevant consideration too but I cannot see how the existence of it entitles the Secretary of State completely to ignore Mitting J’s order which is concerned with precisely the same set of factual circumstances. I am conscious that there may be many cases where it may be argued that different decisions have been arrived at on similar sets of facts and I do not wish my view in this case to be extended to cover those sorts of case. I take the view that I do of this case because the facts here are identical. That, I think, is likely to be rare. Neither counsel referred me to a reported case of this type and, although both practising regularly in the immigration law field, neither had any prior experience of a similar situation.[37]In summary, the Secretary of State had a duty to have regard to Mitting J’s decision. His failure to do so and therefore to take into account all relevant considerations in deciding to remove H, W and the daughter on 16 April 2006, rendered his exercise of his discretion to order their removal unlawful.

Was the detention of H, W and the daughter lawful?

[38]Mr Kovats attempted valiantly to argue that detaining H, W and the daughter could be lawful even if their removal was not. He submitted that detention for a few days would have been lawful whilst the authorities considered what to do about removal in the light of the Mitting order. In these circumstances, he argues that the detention would still have been classed as detention for the purposes of the removal which would normally flow from Owen J’s order.[39]The law permits detention pending a decision by the Secretary of State whether to give removal directions; this power is exercisable where the Secretary of State has reasonable grounds to suspect he may decide on removal. Detention is also permitted pending removal once directions have been given. The detention of this family was thought to be on this latter basis. In fact, the directions had not been validly given for the reasons I have set out above (s 78 of the 2002 Act with regard to the son and the flawed decision making process with regard to the rest of the family). Mr Kovats’ argument must therefore proceed on the basis of the Secretary of State having reasonable grounds to suspect he may decide on removal.[40]Assuming however, without deciding the point, that there were such reasonable grounds, the Secretary of State is obliged not only to act within the provisions of statute law but also to follow his published policy on detention (see, for example, Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768).[41]The policy on detention is set out in Chapter 38 of his Operations Enforcement Manual. It provides that detention must be used “sparingly, and for the shortest period necessary.” and that “All reasonable alternatives to detention must be considered before detention is authorised.”[42]Under the policy, detention would most usually be appropriate in three situations: to effect removal, initially to establish a person’s identity or basis of claim and 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. A factor which is relevant in deciding whether to detain is the incentive that the person concerned may have to comply with any restrictions which might be imposed as an alternative to detention. The policy refers to people having more incentive to comply where they have an appeal or representations pending but it seems to me that this category might also include a family in the situation of this one where, although H, W and daughter had technically reached the end of their appeal route, they would no doubt have been advised that there was at least a possibility that the order of Mitting J in relation to the son might ultimately change the outcome in their case too.[43]John Bell (Chief Immigration Officer at the family’s regional Enforcement Unit) says that detention was considered appropriate because “the family had previously failed to comply with conditions placed on them – they had overstayed their visit visas and had made no attempts to leave the United Kingdom when required to do so. The family were considered to be unlikely to comply with self check-in removal directions.”[44]In fact, having entered the United Kingdom legally on visitors’ visas, they applied for asylum within the period of their visas. The immigration decision making process lasted until the Owen J order in relation to H, W and the daughter and it is not surprising that they did not then remove themselves voluntarily from this country because the son still had a pending application with the High Court which, as far as they were aware, had not been determined. It seems to me highly questionable whether detention was therefore justified on the basis asserted by Mr Bell.[45]Turning to the usual grounds for detention set out in Chapter 38, only detention to effect removal might in fact be applicable. Detention on this basis can only lawfully be exercised where there is a realistic prospect of removal within a reasonable period. I am not convinced that this was so on these facts. Even if it was, there were a number of factors identified in the policy which were material to whether the family were actually detained. I have already referred to the question of an incentive to comply with restrictions as an alternative to detention. A further consideration is that given that the son could not have been detained, detention of H, W and the daughter would have meant splitting the family up, interfering with the family life of the whole family. The question would also have arisen as to who would ensure the welfare of the son during the detention given that H and W would not be able to do so. A question expressly posed in Chapter 38 is “Does anyone rely on the person for support?”.[46]In all the circumstances, a decision to detain on the basis that the Secretary of State was considering whether to remove the family would not have been in accordance with his stated policy. It would have been unlawful and also in breach of Article 5 ECHR.[47]The timing of the detention of the family is also relied upon as making the detention unlawful in that it is said that it deprived them of the opportunity to obtain legal advice. This argument is strenuously contested by the defendant.[48]The family were detained at the start of the Easter Bank Holiday weekend and removed on the Sunday night. On their behalf it is argued that this allowed them no reasonable prospect of obtaining legal advice. Here, that is particularly unfortunate as, had they been able to contact RLC, it would have been apparent that the outcome of the son’s reconsideration application was not yet known and I would certainly hope that the removal would have been postponed so that the situation could be investigated.[49]On 10 May 2006 (less than a month after this family were removed), the Enforcement Policy Unit gave an Interim Operational Instruction on the subject of the speed of removal. The contents include the following passages: “3. In response to serious criticism by the Court, we need to ensure that persons subject to enforced removal have sufficient time between the notification of removal directions and the actual removal to access an effective judicial remedy/seek legal advice…. 5….it is now the case that a minimum time of 48 hours (which must include at least 1 working day) must be allowed between notification of removal directions and the removal itself…” [my italics][50]R (on the application of Karas) v SSHD [2006] EWHC 747 (Admin), decided on 7 April 2006 just a few days before the events in this case, is an extreme example of a family not being provided with a reasonable opportunity to seek legal advice. They were detained one evening with a view to removal the next morning. Munby J found that the detention was deliberately planned in this way with the improper purpose of spiriting the claimants out of the jurisdiction before they could obtain and act on legal advice or apply to the court. Fortuitously they managed to get legal advice and halt their removal. The improper purpose behind the detention process rendered the detention unlawful. Munby J restated the fundamental importance of the right of unimpeded access to legal advice and to the courts by those who are detained by the State. Collins J had also stressed, in R (Collaku) v SSHD [2005] EWHC 2855 (Admin), that a reasonable time must be provided before removal to enable advice to be sought and representations to be made.[51]I am not aware if the May 2006 Interim Operational Instruction resulted from these two Administrative Court decisions but it does seem to me that it may well have done. The Instruction does not, in my view, change the policy under which the defendant should have been operating so much as recognise it. The decisions of Munby J and Collins J make it quite clear that at the time H, W and the daughter were detained, a reasonable time had to be provided before removal to enable advice to be sought and representations made. It is also clear that detention at a time when solicitors’ offices are normally shut was likely to interfere with this and that it would inevitably be an uphill battle for the defendant to justify a process of detention and removal which did not include any working days.[52]The defendant nevertheless sought to justify the detention as lawful. Firstly, he argued that the family had in fact been alerted to their prospective removal on 9 April 2006 by the pastoral visit and therefore could have contacted solicitors between then and their detention on 14 April. There is no evidence of the pastoral visit having alerted the family in this way. There is no evidence they were expressly told that it was a precursor to removal. They were ordinary individuals from a foreign country. They could not be expected to have an understanding of the workings of the IND and to infer that a visit such as this must mean that imminent removal was on the cards, especially as they had not yet heard the outcome of the son’s reconsideration application. Such evidence as there is about the pastoral visit raises the distinct possibility that far from informing the family that preparations were being made for removal, the immigration officers would have been trying not to give this impression. Mr Bell says in his statement:
“The family were not told during the pastoral visit of the planned date of their removal; experience from other cases has shown that the family may have absconded to avoid removal”
. I doubt very much whether the IND’s experience of absconding is confined to those individuals who know the date of their proposed removal. There seems to me every possibility that the mere fact that removal is drawing close may be enough to provoke a disappearance and hence immigration officers are likely to be cautious about letting anything slip at all.[53]The first the family would have known of their need to take legal advice was therefore 14 April. The defendant argues that they had the opportunity to consult a lawyer between then and their removal and they did not even try to do so.[54]The defendant relies on the evidence of Ms Grugel and Mr Bell as to the opportunity to consult a lawyer. She says that the family were told that they could contact a legal representative once they had reached the detention centre. They did not tell the Family Removals Team that the son was represented or make any complaint that he had an outstanding appeal. They would have arrived at the detention centre in the late morning or early afternoon of 14 April. Mr Bell says that the procedure then would have been as follows:
“….detainees at Yarl’s Wood are given an induction within twenty four hours of arrival, including the subject of how to obtain legal advice, and that contact numbers of legal representatives are available at all times. Detainees are given a phone card and are allowed access to telephones from 08.00 to 23.00 every day, and could receive calls between 07.30 and 23.00 (the times when the switchboard is staffed). I understand that Yarl’s Wood has an information library which includes details of legal representatives.”
[55]It has to be remembered that English was not the native language of the family. What English they speak is not known but it is known that they gave evidence through an interpreter in front of the Immigration Judge. Access to a lawyer over the Bank Holiday weekend may well have been difficult for them because of language difficulties therefore.[56]In any event, what this family needed, and in my view were entitled to, was in fact the opportunity to contact the son’s existing lawyers, not just any firm of lawyers that they could find. There was nothing so urgent about their removal that required them to be constrained only to take advice from an emergency lawyer.[57]The defendant submits they could have contacted their lawyer or at least a lawyer and they simply did not try. Mr Kovats pointed out that Switalskis’ letterhead includes an out of hours emergency number. Switalskis were not acting by then, however, and the letterhead of RLC does not include any such number, indeed it says “Please telephone between 10 a.m. and 4 p.m.”. Mr Kovats also points out that there is no evidence directly from the family as to efforts that they made to call anyone. There is, in fact, no evidence directly from the family at all. This is explained by the difficulty in communicating with them in hiding in their country of origin where there is always the possibility of communications being monitored. Those representing them have therefore kept their communications to the most central points. They have, however, filed evidence on behalf of the family from H’s brother who lives in the United Kingdom. The brother says that he makes the statement rather than H because it is very difficult to talk at any length to H over the telephone because the family are very scared that the conversation might be monitored and the authorities find out that they were in the United Kingdom claiming asylum. The brother found out on 14 April from neighbours that the family had been taken away by officials. On the Saturday afternoon, he received a telephone call from H. H asked him to do whatever he could to help. He had been with H to the Immigration Advisory Service after Switalskis ceased to act and he also knew that the RLC were helping the son. He tried the numbers he had for the Immigration Advisory Service and RLC but got no response. He understood that the RLC had an out of hours mobile number that detainees could call for emergency advice but that required enough money for a call to a mobile phone and the family did not have sufficient cash and were not given phone cards until the Sunday by which time they had given up hope. The brother’s statement is not entirely clear but I infer that either he, the brother, did not have the mobile emergency number for RLC or, if it was one of the numbers he rang, he got no answer on it. The brother contacted another solicitor he knew but he said there was nothing he could do to help.[58]This statement from the brother is evidence of considerable attempts to get legal advice. Mr Bell’s evidence indicates the limited basis on which the defendant challenges it in that he says:
“I cannot say if the family made any contact with legal representatives but there is no record that any letters or telephone calls were received from legal representatives acting for them.”
There is, in fact, corroboration in Mr Bell’s statement that efforts of some kind were being made to prevent the family’s removal in that he reports a visit to the IND’s regional office on Saturday 15 April 2006 of a gentleman who described himself as the chairman of a particular local religious group and produced a letter confirming that the Immigration Advisory Service was acting for the family. I do not therefore accept the assertion that the family did not try to get legal advice. The problem was not their inactivity but the fact that they were detained and removed in the space of the Bank Holiday weekend. Detention in these circumstances was, in my judgment, unlawful even though I am not asked to make and do not make any finding that the detention and removal arrangements were devised in order to deprive the family of an opportunity to be properly advised.[59]The defendant argues that if there is a breach of Article 5 at all by virtue of the timing of the detention, it is not a breach of Article 5(1) but at most in breach of Article 5(4) in that, as I have found, it prevented the family from seeking legal advice and thereby having the lawfulness of their detention reviewed by the court. He submits that the decision in Conka v Belgium (2002) 34 EHRR 1298 depended on the Belgian authorities having deceived the applicants in order to detain them. No doubt by parallel reasoning the defendant would also say that the pivotal feature of Munby J’s decision in Karas was the finding that the detention was carried out in the way that it was for an improper purpose. In my judgment, given that the timing of the detention in this case was inevitably and obviously going to lead to difficulties in the family obtaining proper legal advice, it does not matter that it was not attended by any malign intent or deliberately improper purpose on the part of the defendant; the detention itself was rendered unlawful by timing it in a way that prevented legal advice being obtained when there was absolutely nothing in the circumstances of the case which required such an urgent procedure.

Damages for unlawful detention

[60]I have already recorded that it was conceded by the defendant that interim damages of £4,000 for each of H, W and the daughter would be appropriate if I were to find they had been unlawfully detained. I therefore award such interim damages.[61]It is common ground that I should not consider the question of damages further. That must wait until a later stage in the proceedings.

Steps to recover the family

[62]I have given anxious consideration to the application for a mandatory order obliging the defendant to attempt to reach an agreement with the authorities in Y prior to the family leaving their country of origin in order that they can be assured that they will be able to travel onward from Y to the United Kingdom without difficulty.[63]The underlying merits of the application are clear in that the unlawful actions of the defendant have resulted in the family being stranded abroad when they should still be in the United Kingdom.[64]Given that Mitting J’s order leaves the way open for a possible finding in due course that the situation in the country of origin is such as to found a valid asylum claim, it is difficult, in my view, to feel any degree of security in the defendant’s assertion that the family could approach the authorities there for their passports and leave their country of origin in the ordinary way. Other methods of enabling the family to return to this country must be sought strenuously and I consider it entirely appropriate to order the defendant to take all such steps as are reasonable to secure this.[65]What troubles me is the nature of the specific order that the family seek. I am in full agreement with Mitting J’s view that it would not be proper for me to require the defendant to do anything that would deliberately infringe the domestic laws of another country i.e. the country of origin. If I were to order an approach the authorities in Y before the family had left the country of origin for an assurance of free onward passage, that approach could only be with a view to enabling the family to depart from their country of origin in breach of the laws of that country; everyone knows that a route through Y and negotiations with the authorities in Y would be unnecessary if the family felt able to seek their passports back.[66]On behalf of the family it is submitted that it is not necessarily a violation of international law for a refugee to leave his country of origin without complying with domestic controls. The Refugee Convention accepts that certain refugees may have to cross borders in an unlawful manner and these courts are accustomed to dealing with cases of genuine asylum seekers who have done that. The difference is that those refugees seek the assistance of this country’s government by way of an asylum application made when they arrive here and not whilst they are still in their country of origin. It is one thing to say that a government must not penalise an asylum seeker for travelling without legitimate travel documents; it is quite another to say that a government can be ordered knowingly to facilitate the flight of a refugee from his country of origin in an unlawful manner.[67]I have considered very carefully whether it could be a correct analysis to view the two stages of the journey as quite separate steps and to proceed to make the order sought on the basis that an order for an approach to the authorities in Y was not inevitably in contemplation of illegality. Anxious though I remain on the point, however, I have ultimately reached the view that it would not be a proper order for the court to make. I would be prepared to hear further submissions about whether an order should be made requiring the defendant to make an approach to the authorities in Y once the family is in Y if the family takes that route, though that may be a form of relief that would be better sought at that time than now.[68]This judgment is to be circulated in draft and corrections to it can be offered in the normal way. As for the order and further directions, I hope that counsel will agree upon what they can and prepare a draft. The judgment can be handed down and the order made without attendance if there is no debate or alternatively a short hearing will need to be arranged. MRS JUSTICE BLACK: I hand down the judgment in this case in the form that has already been circulated. MR SOUTHEY: My Lady, apologies for being here but there was one matter we could not resolve. We circulated a proposed order and I think it is fair to say that, unless my friend corrects me, the provisions 1, 3 and 4 in the order are agreed, but it is provision 2 that is the subject of a degree of debate. What we have attempted to do in provision 2 (this is my drafting) is reflect the terms of paragraph 64 of your Ladyship's judgment. In particular, we were concerned to make it clear that one of the things your Ladyship clearly found was that it was not appropriate to require our clients to approach the Iranian authority for the return of their passports. We wanted that reflected in the terms of the order. That is what we tried to do in relation to. paragraph 2. MRS JUSTICE BLACK: If it says, "all reasonable steps" then they say, "It is not reasonable and I did not find that it was to oblige them to approach...". The difficulty, it seems to me, is the problem that Mr Kovats had with me making an order which would oblige an approach not to Iran but to Turkey prior to their leaving Iran. In your draft, at the moment, that is not actually contemplated. MR SOUTHEY: No, we have taken that on board. What we have tried to do is reflect paragraph 64 without adding in anything that would make any difference. MRS JUSTICE BLACK: This is your draft? Perhaps I ought to hear from Mr Kovats. MR KOVATS: There are, my Lady, four concerns that we have: while we understand the sentiment and wish to be helpful, there are real problems here, we submit. First, "reasonable steps", without specifying particulars, particularly given the history of this case, we submit is a recipe for further litigation. For the reasons, which I will not rehearse, we have already set out what we have considered to be reasonable and unreasonable steps. Clearly the parties do not agree about that. Secondly, we have taken advice from the Foreign and Commonwealth Office about contacting the Turkish authorities and the advice that we have received is that this would be unhelpful at best and risk being counter-productive to the claimants. Without going into detail, our advice has been from the Foreign Office that the Turkish authorities would regard it as an unwarranted interference if any approach were made to them even if the family were already in Turkey. The third is perhaps a technical point, but nonetheless a real one: the Foreign Office has not been joined in these proceedings. It is not, in our submission, a proper function of the Home Office to approach foreign governments, that is a matter for the Foreign Office. If, in truth, the claimants are seeking relief against the Foreign Office, they should join the Foreign Office and the Foreign Office can then be here and speak for itself. The fourth and final point is that we respectfully submit that it is not warranted by the terms of your Ladyship's judgment that any particular order should be made requiring further steps in these matters. MRS JUSTICE BLACK: I think I did contemplate that they would be ordered to take all reasonable steps to enable the family to return to the United Kingdom. MR KOVATS: We have all along accepted that we will continue to try and take such steps as we consider are appropriate to facilitate their return. To that extent my clients believe that they are acting, and will continue to act, in accord with the judgment without the need for any particular provision to be put in the court's order. MRS JUSTICE BLACK: I think two things came out of my judgment: one was that it was right for the Home Office to be required to take all reasonable steps to get them back here, the other was that -- I cannot remember precisely how I expressed it -- I could see why it was that the family, in the circumstances of the unresolved issue from Mitting J's reconsideration order, could say that they were unable to approach the Iranian authorities for their passports back. Those two propositions, taken together, have been put into paragraph 2 I think really. Those two propositions are, to a greater or lesser degree of firmness, findings in my judgment and unless you appeal those findings the Secretary of State is stuck with those as the basis for drafting any resulting order. Is your fundamental submission that it is not necessary to make an order because he is doing it anyway, or is your fundamental submission about the terms of the order as drafted? MR KOVATS: I make both submissions. I clearly accept that there is a dispute between the parties as to whether the Secretary of State is complying with his legal obligations or not. As I understand it, the sticking point appears to be that the claimant is not suggesting that we do anything further vis-a-vis the Iranian authorities. As I understand it, the claimant is saying we ought to approach the Turkish authorities. If the claimant has in mind that that approach should be made if and when the family arrive in Turkey, then that runs into prematurity difficulties because the whole thing may not arise. The reconsideration of the son's case, as we understand it, is going to go ahead. I do not know why, because the date has not been fixed. It is at least possible that that reconsideration will go ahead while the whole family is in Iran and the son will lose on the reconsideration. In that situation we respectfully submit it will be entirely wrong for any further steps to be taken by the Home Office as a matter of legal obligation. Whether as a matter of discretion that will have to be considered in due course... MRS JUSTICE BLACK: Thinking about the reconsideration going ahead in the absence of the son, I see that there is a technical power to do so, but there may be material evidence that the son can give about the circumstances in which the passports were retained. MR KOVATS: We may not get to that. Your Lordship may be aware that there are two stages for reconsideration. The first, which has not yet been determined, is to make a finding whether or not the immigration judge made a material error of law. That takes part without any further evidence. That is just a critique: if he falls at that stage then it is the end of the whole case. MRS JUSTICE BLACK: I just still do not see what the difficulty is with paragraph 2 as drafted. At the moment we have to be sensitive to the possibility that approaching the authorities of the home state for return of the passports may not be a sensible plan for these claimants. Therefore the defendant being in a position of wrongdoing, as a result of the findings in my judgment, ought to be taking reasonable steps to get them back here without them having to do that. Where I stopped short was in ordering the government to do anything specific with regard to an approach to Iran or to Turkey (or anywhere) at any particular time. If, for instance, I was being asked to say that the Foreign Office should approach Turkey after they have got to Turkey in the light of what you said today, and, in any event, I would not be keen to be that specific in an injunction. The draft is not that specific. I can see you say that there should be no more litigation about this, but in a sense that is inevitable. I foreshadowed that in the judgment, saying I am not sure whether this is the right moment to make these applications. In any event, it depends on what develops, does it not? MR KOVATS: I shall make my position clear: if paragraph 2 were to go into your lady's order my client will take the view that reasonable steps means proceeding with the reconsideration (?) in the case; until that happens, nothing will happen over and above what has already happened. MRS JUSTICE BLACK: I do not see what more I can do, unless somebody can think in those circumstances of something specific which I should be ordering you to do, which would then put the Secretary of State in a more difficult position in saying, "I am not going to do anything until the reconsideration has taken place". MR KOVATS: I hope my clients have made the position clear. They have conceded throughout that the son was removed unlawfully. They have no interest in doing anything other. The fact that they have not been able to do so is not a reflection of lack of will or effort on their part. MRS JUSTICE BLACK: There is a fundamental difference of opinion as to whether the claimant should be approaching the authorities to get their passports back or not. MR KOVATS: I do not want to rehearse it all. I say that is not based on evidence, it is based on assertion. MRS JUSTICE BLACK: I understand that that is a very preliminary point. You are stuck with that at the moment. Thank you very much indeed. Mr Southey, do you want to ask for anything more specific? I am not prepared to order an approach to Iran or Turkey either before or after they get there. MR SOUTHEY: We have deliberately put it in the terms we have. What we are seeking to record here is not that any particular steps should be taken out. We are not suggesting that there are any that we can particularly take at this point in time. What we are keen to record, and what we have tried to do, is make clear that the Secretary of State's approach up to now, which is to say what you should be doing is approaching the Iranian authority for the return of passports, is not sufficient. What we are anticipating is that there may come a time where we may be in a position to ask for something else, or that the Secretary of State may be in the position to suggest something else. That is why this order is, in our submission, appropriate merely to record that it is in response to any future approaches. It is not sufficient for the Secretary of State to say, "You should have approached the Iranian authorities to require the return of your passport". That is all we are seeking to do. Before your Ladyship finishes there are two other things in my learned friend's arguments that I think probably need to be included in the order; first, liberty for either side to apply. I make that point, I think to both sides, obviously in the light of the reconsideration. MRS JUSTICE BLACK: In the light of the reconsideration it may be that the passage about requiring him to approach the authorities of the home state ought to go. MR SOUTHEY: Obviously if reconsideration happens. I think both sides have liberty to apply. I also formally should put this in, that the final assessment of damages should be adjourned to a Master of the QB. MRS JUSTICE BLACK: Do you agree with the final assessment of damages? MR KOVATS: Yes, Mr Southey and I in fact agreed that before the hearing in front of your Ladyship. It was just an oversight that it was not in the order. MRS JUSTICE BLACK: The other question is liberty to apply. MR KOVATS: I had proposed that to Mr Southey and he preferred paragraph 2, but we certainly would be happy with liberty to apply. MRS JUSTICE BLACK: I am going to make the order in the form it has been drafted. The reason I do so, despite the objections of the defendant to paragraph 2 (which is the provision that says that "the defendant is required to take all reasonable steps to enable the claimant to return to the United Kingdom without…") is that it seems to me that strikes an appropriate balance between the duty of the defendant, having acted unlawfully in the actions that resulted in the claimants being in their country of origin at the moment, to get them back to this country and the very considerable difficulties- that there are about all the methods of doing that in this particular case. As I have explained in my judgment, there are difficulties potentially in requiring the defendant to do certain things to try to smooth the passage of the claimants back to this country. Therefore anything specific in paragraph 2 would be very difficult. They need to have room for diplomacy and discretion with regard to what happens. Equally there is a difficulty at the moment, in the light of Mitting J's order for reconsideration with regard to the son, in requiring these claimants to approach the authorities of their home state. Paragraph 2 of the proposed order, it seems to me, encapsulates the difficulties on both sides. I appreciate it might need more litigation. I am afraid that is inevitable in the case. Nobody has been able to give a solution to the practical problem that there is. MR KOVATS: In the light of that can I ask for permission to appeal? I am not going to develop it at all. I am expecting your Ladyship to say no. MRS JUSTICE BLACK: Just on that particular issue of the injunction? MR KOVATS: I prefer to put it in bald terms. If your Ladyship says no, that gives my client then the opportunity to consider over the next couple of weeks whether or not they wish to appeal. Because we are approaching the Christmas period, can I ask that your Ladyship extends until four weeks from today the time for making an application to the Court of Appeal? MRS JUSTICE BLACK: I am going to say no because it is an exercise of discretion. I actually wondered whether Mr Southey might have sought leave to appeal against my refusal to grant an injunction to order you to do various things, as I set out in the judgment. There we are "no", but you can have an extension of time to four weeks for lodging the application to the Court of Appeal for leave, if you want to. Thank you very much.

Cited in 4 later judgments