R (on the application of (1) PREDRAG KARAS (2) ST ANISLA V A MILADINOVIC) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2006] EWHC 747 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

[2006] EWHC 747 (Admin)

Case No Case No: CO/6239/2004

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

R (on the application of (1) PREDRAG KARAS (2) ST ANISLA V A MILADINOVIC)Claimants

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Before

Mr Justice Munby

Ms Amanda Weston (instructed by Sutovic & Hartigan) for the claimants

Ms Lisa Giovannetti (instructed by the Treasury Solicitor) for the defendant

Hearing dates: 22-23 February 2006

Date 7 April 2006

[1]Mr Justice Munby : The first claimant, Predrag Karas, who I will refer to as the husband, and the second claimant, Stanislava Milandinovic, who I will refer to as the wife, are now married. When the story begins they were not married and in fact had not even met.

[2]Both the husband and the wife are Croatian nationals of Serbian origin. The wife arrived in this country on 21 June 1997 with leave to enter for two years as an au pair. That leave having expired on 21 June 1999 she obtained a student visa expiring on 31 January 2003. In the meantime the husband had arrived in this country on 22 January 1999 and claimed asylum on arrival. He and the wife met at a party on New Year's eve 31 December 1999.

[3]On 17 March 2000 the Secretary of State rejected the husband's claim for asylum. On 16 October 2000 he refused the husband leave to enter. The husband appealed. His appeal was dismissed by the Adjudicator (Mr S A Pedro) on 2 July 2001. He did not seek permission to appeal to the Immigration Appeal Tribunal.

[4]In June 2001 the husband and the wife started living together.

[5]On 5 November 2001 the Secretary of State issued directions for the husband's removal on 15 November 2001. On 14 November 2001 - at the very last minute, and notwithstanding that they had been instructed by the husband as long before as 14 September 2001 - the husband's solicitors, Messrs Sutovic & Hartigan, wrote to the Secretary of State requesting that the husband's case be considered as a fresh claim and/or outside the immigration rules and on compassionate grounds.

[6]Time passed. On 5 September 2002 the husband and the wife married. More time passed. The Secretary of State had still not responded to the claim lodged by the husband on 14 November 2001. On 13 January 2003 Messrs Sutovic & Hartigan, instructed by now also for the wife, wrote to the Secretary of State seeking on her behalf that she be added to her husband's outstanding claim for asylum. There appears to have been no response to that letter.

[7]On 24 March 2004 Messrs Sutovic & Hartigan wrote to the Secretary of State making further representations on behalf of the husband in support of his claim, which was now expanded to include specific reliance upon both Article 3 and

Article 8 of the European Convention

for the Protection of Human Rights and Fundamental Freedoms. Enclosed with that letter was the husband's written statement dated 8 March 2004. More time passed, seemingly without any substantive response of any sort by the Secretary of State to the three letters dated 14 November 2001, 13 January 2003 and 24 March 2004.

[8]In about May 2004 the wife became pregnant, though the Secretary of State was not aware of this until October 2004 (see below).

[9]October 2004 arrived. I must now trace the history of subsequent events in some detail.

[10]All this time - this is the unchallenged evidence of the wife - her husband had been reporting on a weekly basis to the Croydon Immigration Office. She says, and this again is unchallenged, that he never failed to report. In fact he reported as usual on Monday 10 October 2004.

[11]The same day (10 October 2004) the Secretary of State gave notice to the relevant airline of directions for the removal of the husband and wife to Croatia on a specified aircraft leaving Heathrow at 7.40 am on 12 October 2004. The husband and wife had no knowledge that this had been done. Indeed the relevant documents were not produced by the Secretary of State until 22 February 2006, and then only when I asked to see them. The documents which were then produced show that the notice of directions to remove, and an accompanying notification to the Immigration Office at Heathrow of second port removal, were faxed by the Secretary of State to the Immigration Office at Heathrow at 1.16 pm on 10 October2004.

[12]At approximately 8.30 pm on 11 October 2004 the husband and the wife were detained by immigration officials at their home in Northolt and told that they were to be removed to Croatia the next morning. I think I should set out in full the account which the wife gave in a written statement dated 12 September 2005:

"On 11 th October 2004 at 20.30 hours, seven immigration Officers came to our home. They informed us that they had come to remove us from the country as our case was finished and we had no right of appeal. We were informed that our removal would take place on the following morning at 07.45 hours. Both my husband and I were deeply shocked. I asked why we were not informed earlier they said that they had written to us and that we should have all the letters. I explained that we had not received anything. I requested permission to speak to our solicitor, but they refused this and the reasons they gave was that they couldn't be sure who I was calling. They said that we would be able to speak to a solicitor when we arrived at the detention centre. I explained to the officer that I was pregnant and that I had had difficulties with conception and pregnancy because I had a condition called polycystic ovaries. They asked me then whether I felt fine at the moment and I said 'yes' but that this was because I was in my own home and I feared that I would not cope with detention and worst of all, I feared what would happen to us if we forcibly removed to Croatia. The officers then said that there were medical facilities in the detention centre where I would get help if there were any problems. The officers then proceeded to help us to pack all our belongings and at that point both my husband and I started to cry. There was nothing else we could do. We were taken first to Tinsley House where we arrived between 23.00 hours and 24.00 hours. After our arrival there, we were searched, photographed and admitted to the detention centre. Both my husband and I did see a nurse on arrival and at that stage I was very exhausted and distressed. The nurse said that she saw many people in a similar condition to me and that I was fit to fly. She had only spent five minutes examining me before reaching her conclusion. The whole admission process took two hours and it was not until 02.00 hrs on 12 October 2004 that we were able to contact our legal representative on the emergency number. When I managed to speak to my solicitor, she asked me some questions about why we feared to be returned to Croatia and advised that, on the information I had given, the best thing was for me to claim asylum in my own right. At approximately 03.00 am, we were taken to Gatwick airport where we arrived at approximately 04.00 am. We were put in a room which had only four chairs attached to the wall and a piece of foam on the floor. The room had no windows. There was a stale, damp smell and it was very cold. It was like a prison cell. Everything was screwed down and we couldn't even switch the light off; it remained on all the time. We stayed there until midnight on the 12 th October 2004. We could go outside the room to the food and drinks machines but we were not offered any food or drink at any time since our arrival at 20.30 hours on 11 th October 2004. It felt like we were treated like criminals. There was a Security Officer standing at the door of the room at all times. We were forced to sleep on a single thin piece of mattress, which was extremely uncomfortable. We had no bed covers and it was very cold. When I complained, they allowed me to get some clothes from our bags to put on the mattress. While I experienced extreme discomfort, I was not in pain and for this I was grateful, which I feared because of my previous difficulties with conception and pregnancy. As soon as I arrived at the airport, I asked to speak to an Immigration Officer and explained that I wanted to claim asylum. He tried to persuade me not to do so because his view was that I had no basis to claim asylum and he informed me that I would be detained for a long time and that in the end, I would be removed anyway. I nevertheless maintained my decision. By this time it was 06.00 am on 12 th October 2004. We remained there until after midnight on the same day and we were first offered food at noon on that day. Eventually we were taken back to Tinsley House where we remained for four days and from there we were taken to the Oakington Reception Centre, I think. on 17th October 2004."

[13]I should add to this account what is said in the grounds filed in support of the subsequent application for judicial review (see below), an account verified as true by Ms Stojsavljevic-Savic of Messrs Sutovic & Hartigan and nowhere challenged by the Secretary of State. At about 10.30 pm on 11 October 2004 friends of the husband and the wife contacted Messrs Sutovic & Hartigan, who eventually made contact with the husband and the wife at about 1.30 am in the early hours of the next morning (12 October 2004).

[14]It is not clear on the evidence precisely when (if ever) the husband and the wife and Messrs Sutovic & Hartigan first received a copy of the removal directions. Nor is it clear on the evidence when they first received a copy of an undated letter from the Secretary of State addressed to Messrs Sutovic & Hartigan headed 'Notice of Refusal of Leave to Remain under the Immigration Act' and setting out the Secretary of State's reasons for refusing the applications embodied in the letters dated 14 November 2001, 13 January 2003 and 24 March 2004. A faxed copy of that refusal letter produced from the files of Messrs Sutovic & Hartigan shows that it was faxed between 4.16 pm and 4.22 pm on a date which has unfortunately been obscured by a subsequent hole-punch. There is no evidence from the Secretary of State as to when it was sent and no very clear evidence from Messrs Sutovic & Hartigan as to when it was received. It is not asserted by the Secretary of State to have been sent prior to 11 October 2004, nor is there any clear evidence from Messrs Sutovic & Hartigan that it was not received until 12 October 2004. Indeed, the statement filed in support of the judicial review proceedings by Ms Stojsavljevic-Savic of Messrs Sutovic & Hartigan states that it was "faxed apparently at 16.16 hours on 11/11/04."

[15]I propose to proceed therefore on the footing that it was faxed by the Secretary of State to Messrs Sutovic & Hartigan between 4.16 pm and 4.22 pm on 11 October 2004, that is, some four hours before the husband and wife were detained later the same day at approximately 8.30 pm. What is clear (see paragraph 26 of the grounds in support of the application for judicial review) is that the decision letter, when it was faxed to Messrs Sutovic & Hartigan, was not accompanied by any notice of removal directions. The letter merely ended with the formulaic statement that "steps will now be taken to remove them from the United Kingdom."

[16]The reasons for the detention of the husband and wife were set out in a 'Notice to Detainee: Reasons for Detention and Bail Rights' dated 11 October 2004. The notice recited that:

"Detention is only used when there is no reasonable alternative available. It has been decided that you should remain in detention because (tick all boxes that apply):"

The pro-forma then lists, (a) to (f), six possible reasons. The only box which was ticked was (c ), "Your removal from the United Kingdom is imminent." The notice continued:

"This decision has been reached on the basis of the following factors (tick all boxes that apply):"

The pro-forma then lists, (1) to (14), fourteen relevant factors. The only box which was ticked was (8), "You have previously failed or refused to leave the UK when required to do so." The pro-forma contains this 'Important notice for detained persons':

"You may on request have one person known to you or who is likely to take an interest in your welfare informed at public expense as soon as practicable of your whereabouts."

[17]The wife's claim of asylum in the early hours of 12 October 2004 stopped the Secretary of State in his tracks. The aircraft left without the husband and the wife. They remained in detention.

[18]On 17 October 2004 the husband was served with a further 'Notice to Detainee: Reasons for Detention and Bail Rights'. This time boxes (a) and (f) had been ticked - "You are likely to abscond if given temporary admission or release" and "I am satisfied that your application may be decided quickly using the fast track procedure." Boxes (1), (4), (5) and (8) were also ticked - "You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place", "On initial consideration, it appears that your application may be one which can be decided quickly", "You have used or attempted to use deception in a way that leads us to consider you may continue to deceive" and "You have previously failed or refused to leave the UK when required to do so."

[19]On 21 October 2004 Messrs Sutovic & Hartigan served a One Stop Notice of Appeal on behalf of the husband.

[20]On 22 October 2004 the Secretary of State refused the wife's application for asylum. On the same day the Secretary of State gave both the husband and the wife notice of refusal of leave to enter. As those notices correctly pointed out, although the wife had a right of appeal the husband did not.

[21]On 25 October 2004 the husband and wife were released from detention.

[22]On 28 October 2004 the wife gave notice of appeal against the Secretary of State's refusal of her claim to asylum.

[23]On 8 December 2004 the husband and the wife applied for judicial review, seeking to challenge(i) the Secretary of State's undated refusal to consider the representations in the letters of 14 November 2001 and 24 March 2004 as a fresh claim and

(ii) the Secretary of State's decision to detain the husband and the wife. 1 shall return in due course to consider the grounds of challenge in more detail, but it is important to note that the grounds set out in paragraph 26 the following very serious allegation:

"effectively the [Secretary of State] was seeking to detain and remove the [husband and wife] without notifying their solicitors ... the [Secretary of State] by seeking to detain and remove without notifying [their] solicitors and doing so 'after hours', effectively was seeking to deny [them] access to legal advice and in so doing acted unlawfully."

[24]On 18 January 2005 the Secretary of State filed an acknowledgement of service and summary grounds of defence.

[25]On 26 January 2005 the wife's appeal against the Secretary of State's refusal of asylum was dismissed by the Adjudicator (Ms P Monro).

[26]On 25 February 2005 the wife gave birth to a daughter.

[27]On 7 March 2005 the wife's application for permission to appeal to the Immigration Appeal Tribunal was refused by the Tribunal (Mr P R Moulden).

[28]On 29 April 2005 Sullivan J gave permission on the papers. I think I should set out in full the observations he made:

"The very length of the Defendant's Summary Grounds suggests that the arguability threshold has been crossed. Moreover, I note that the Defendant has studiously avoided giving an explanation for: (a) the failure to respond to the Claimant's representations made on 14 th November 2001 and 24 th March 2004 until the updated decision faxed on 11th October 2004; (b) the failure to serve that letter on the Claimant's Solicitor until 16.16 hrs on that day, even though removal was set for 07.40 hrs on the following day. The explanation for the Second Claimant's detention until the 25 th October when she had claimed asylum on the 12 th October is less than impressive. There is a need for a firm application of immigration control, but the powers must not be exercised in an oppressive manner. There is no suggestion that these Claimants had "gone to ground"

. The Claimants were represented by Solicitors, who had been waiting nearly 3 years / 7 months for replies to their representations in 2001 / 2004. Why was it necessary to detain these Claimants on 11 th October for removal on 12 th October before responding to their Solicitors?"

[29]On 6 June 2005 the Secretary of State served detailed grounds of defence. It is to be noticed that, despite what Sullivan J had said, the detailed grounds added surprisingly little to the earlier summary grounds.

[30]On 8 September 2005 Messrs Sutovic & Hartigan sent the Secretary of State copies of the medical notes which had been referred to in paragraph 28 of the claimants' grounds. On 12 September 2005 the wife made the statement from which I already quoted. On 14 October 2005 the Secretary of State filed the only evidence which has ever been put in on his behalf. It was confined to the question of the Secretary of State's knowledge of the wife's pregnancy.

[31]As I have said, there are two quite distinct grounds of challenge: the first relates to the Secretary of State's refusal on 11 October 2004 to consider the representations in the letters of 14 November 2001 and 24 March 2004 as a fresh claim; the second relates to the Secretary of State's decision to detain the husband and the wife. I shall deal with them in turn.

[32]Was there an arguable fresh claim?

[33]I do not propose to go through the jurisprudence on this topic which is both complex and developing. The cases to which I was referred bearing on this part of the claim are, in chronological sequence, S (01/TH/0632), S v Secretary of State for the Home Department

[2002] EWCA Civ 539

, SK (Return - Ethnic Serb) Croatia CG* [2002] UKIAT 05613 , Shala v Secretary of State for the Home Department

[2003] EWCA Civ 233

, Bushati v Secretary of State for the Home Department [2003] UKIAT 07423 , DK (Return - Ethnic Serb - Upheld SK - Accommodation) Croatia CG [2003] UKIAT 00153 , Janjanin v Secretary of State for the Home Department

[2004] EWCA Civ 448

, Senthuran v Secretary of State for the Home Department

[2004] EWCA Civ 950

, Huang v Secretary of State for the Home Department

[2005] EWCA Civ 105

[2006] QB 1

, Strbac v Secretary of State for the Home Department

[2005] EWCA Civ 848

, Secretary of State for the Home Department v Akaeke

[2005] EWCA Civ 947

, GS (Article 8 - public interest not a fixity) Serbia and Montenegro

[2005] UKAIT 00121

, K v Secretary of State for the Home Department

[2005] EWCA Civ 1655

and Janosevic v Secretary of State for the Home Department

[2005] EWCA Civ 1711

[34]At the date of the Secretary of State's decision letter, the most recent authority was Senthuran. The important decisions in Huang, Strbac and Janosevic still lay in the future.

[35]I need not consider either the claimants' original grounds or the Secretary of State's summary and detailed grounds in any detail. They have been overtaken by events. The essential thrust of the claimants' original case was the assertion that the Adjudicator's decision on 2 July 2001 was founded primarily on what was described as the "subsequently discredited" determination of the Tribunal in S. Reliance was placed on the fact that what was described as the "test case" of Strbac was pending in the Court of Appeal. But as Ms Giovannetti points out on behalf of the Secretary of State, many of the arguments being relied on by the claimants in their grounds have since been rejected as "misconceived" by the Court of Appeal in Strbac (see, for example, at para [25]). I go instead, therefore, to the way in which the case is now put on their behalf as set out in Ms Weston's skeleton argument.

[36]Ms Weston puts her case in two ways. First, she submits that the husband has developed a private life within the United Kingdom - the claim is put on the basis of private life, not family life; rightly so, as Ms Giovannetti observes, because there is no reason why his wife and daughter cannot go back to Croatia with him. Ms Weston submits that in all the circumstances his case falls within the "exceptional" category recognised by the Court of Appeal in Huang (see per Laws LJ at para [59] - "so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour" - and para [60] - "truly exceptional instances"). She points to a number of factors: i) The husband's reasonable belief on his arrival in this country that he would, in the light of guidance issued by the Secretary of State in May 1999, be granted some form of status - something, moreover, that had not been drawn to the Adjudicator's attention. ii) The fact - so it is said - that the husband's sister was granted indefinite leave to remain as a refugee on the basis of what are said to have been almost identical circumstances. iii) What is said to have been the "serious delay" by the Secretary of State, in particular from November 2001 until October 2004. In this connection Ms Weston placed reliance on Shala, Senthuran and Akaeke, as also on Mthokozisi v Secretary of State for the Home Department

[2004] EWHC 2964 (Admin)

. iv) The birth of the child. v) The conditions of 'deprivation and misery' facing ethnic Serb returnees to Croatia. Ms Weston submitted that conditions which may not of themselves satisfy the threshold under either Article 3 or Article 8 are nonetheless relevant factors to be taken into account in reaching a view upon the proportionality of removal. Reference was made in this connection to the decision of the Tribunal in SK at paras [40] and [44].

[37]Secondly, Ms Weston submits that the conditions facing ethic Serb returnees to Croatia in fact amount, cumulatively, to a breach of either Article 3 and/or Article 8. She relies in this context upon the 'continuum' argument considered in Strbac.

[38]In relation to each of these grounds Ms Weston submits that the question for me is whether the submissions now being put forward are sufficiently different from the earlier claim as to admit of a realistic prospect that a favourable view could be taken of the new claim: see R v Secretary of State for the Home Department ex p Onibiyo

[1996] QB 768

, R v Secretary of State for the Home Department ex p Boybeyi [1997] INLR 130,

[1997] EWCA Civ 1689

and (as at the relevant date) paragraph 346 of the Immigration Rules. Ms Giovannetti does not dispute that this is the question I have to decide.

[39]Ms Giovannetti makes three essential submissions: i) First, she points out that the matters now being relied upon include matters not put before the Secretary of State at the time of his decision. The husband's alleged reliance on the May 1999 policy was not asserted in any of the representations. (Indeed, as Ms Giovannetti points out, it is difficult to see how it could have been, given that the husband had arrived some months earlier in January 1999.) And the child had not even been conceived when the further representations were made to the Secretary of State on 24 March 2004. Indeed, as late as the date when he made his decision the Secretary of State had not been told that the wife was pregnant. ii) Secondly, she points out that the matters now being relied upon include a matter which, because it was relied on before the Adjudicator, paragraph 346 required the Secretary of State to disregard. The decision in the case of the husband's sister had been promulgated on 6 November 2000 and had in fact been relied on by him before the Adjudicator who dismissed his claim on 2 July 2001. iii) Thirdly, and more fundamentally, she submits that even if all the factors now being relied upon are taken into account they do not, in the light of Huang and Strbac, give the slightest realistic prospect of success.

[40]In my judgment, Ms Giovannetti is right on all three points. I say no more about the first two, save to say that I agree entirely with her submissions. I must, however, elaborate why I agree with her on the third, and much the most important, point.

[41]At the outset I should make clear that I agree with Mr Giovannetti's submission that the Secretary of State's May 1999 guidance does not in any event add anything of substance to the claim. As she points out, this guidance was in force, in one form or another, only from May 1999 until November 1999. It was therefore not in force when the husband arrived in this country (January 1999) nor when his claim was rejected first by the Secretary of State (October 2000) and then by the Adjudicator (July 2001).

[42]Going to the substance of the claim, Ms Giovannetti makes two fundamental submissions with each of which I have no hesitation in agreeing. In the first place, as she points out, the decision of the Tribunal in DK is fatal to the claim under Article 3. Moreover, as she also points out, the claimants do not even suggest, let alone adduce any evidence to show, that the situation has worsened since the decision in DK. She submits, and I agree, that there is no realistic prospect that an Immigration Judge would conclude that conditions in Croatia are such that to return these claimants there would breach Article 3. Indeed, she submits - and I agree - that there is simply no material upon which an Immigration Judge could lawfully reach such a conclusion.

[43]Secondly, and focussing on Article 8, Ms Giovannetti submits that there is no realistic prospect of an Immigration Judge concluding that this is, in the Huang sense, an "exceptional" case. She submits - and I agree - that there is, again, simply no material upon which an Immigration Judge could lawfully reach such a conclusion. The stark but inescapable fact, in my judgment, is that there is simply nothing in the present case to take it out of the general run of such cases. It is not, to adopt a phrase once used by Sedley LJ (see ZT v Secretary of State for the Home Department

[2005] EWCA Civ 1421

at para [42]), a case that transcends its class. The fact, unhappily for them, is that the claimants cannot point to circumstances which, even in combination, differentiate their situation from that of unsuccessful claimants in many, many such cases.

[44]The delay in the present case is, no doubt, most unfortunate. It is much to be regretted. But it is far from unusual, let alone exceptional. Nor, despite, the increased disappointment which it no doubts causes them, can the claimants plausibly claim that it has had any significantly adverse effect on them. Ms Giovannetti correctly points to Strbac as showing (see para [26]) that delay, although relevant, is not a determinative factor. And she equally correctly points to Janosevic as showing (see para [12]) that the effect of delay must be "very substantial" if it to drive the decision in the claimants' favour. In the present case the simple fact, I agree, is that the claimants have not demonstrated - cannot demonstrate - that the delay has had any significant, let alone a "very substantial", effect. Nor, I might add, is the delay in the present case the "public disgrace" which in Akaeke enabled the claimant to succeed.

[45]Finally, I agree with Ms Giovannetti that both the analysis and the actual decision in Strbac make it impossible for the claimants to succeed on their 'cumulative' or 'continuum' arguments.

[46]I agree with Ms Giovannetti that, however one looks at it, the claimants simply have no viable claim to remain in the United Kingdom. I do not think that they have established any basis of challenge to the Secretary of State's decision. Even if he were to be required to reconsider their claim the Secretary of State would, in my judgment, be entitled - in truth, bound - to reach the same conclusion. I should add that there is nothing either in GS or in K, to which Ms Weston directed my attention, which leads me to a different conclusion.

[47]Accordingly, and for all these reasons, the claimants' first ground of challenge fails.

[48]I turn now to the quite separate matter of the lawfulness of the Secretary of State's detention of the husband and the wife from 11 October 2004 until 25 October 2004.

[49]Six separate grounds have been put forward in support of the related contentions(a) that the original detention on 11 October 2004 was unlawful and

(b) that, even if the original detention on 11 October 2004 was lawful, the continued detention until 25 October 2004 was unlawful. It is submitted that: i) The original detention was unlawful because there was, at the relevant time, no publicly available and stated policy governing such detentions. ii) The original detention was unlawful because it was not justifiable under the Secretary of State's previously published policy and was oppressive, unreasonable and disproportionate. iii) The original detention was unlawful because the Secretary of State was seeking to detain and remove the husband and wife without notifying their solicitors and whilst denying them access to legal advice and access to the court. iv) Even if the original detention on 11 October 2004 was lawful, the continued detention until 25 October 2004 was unlawful because once the wife had applied for asylum in the early hours of 12 October 2004 there was no longer any prospect of an early removal. v) Even if the original detention of the husband on 11 October 2004 was lawful, the detention of the wife was unlawful because of her pregnancy. vi) Even if her original detention on 11 October 2004 was lawful, the continued detention of the wife until 25 October 2004 was unlawful because of her pregnancy.

[50]There is, in my judgment, no substance in the first of these complaints. I can deal with it very shortly. This complaint is founded on the observations of the Court of Appeal in Nadarajah and Amirthanathan v Secretary of State for the Home Department

[2003] EWCA Civ 1768

, [2004] INLR 139 , at paras [64]-[65]. But, as Ms Giovannetti correctly pointed out, this was the very argument, put on precisely the same grounds, which Collins J rejected in R (Collaku) v Secretary of State for the Home Department

[2005] EWHC 2855 (Admin)

at paras [19]-[22]. I agree with Collins J and with his reasoning. There is no substance in the point.

[51]Nor is there any substance in either of the fifth and sixth complaints, those founded on the fact that the wife was pregnant. The Secretary of State did not even know when she was detained on 11 October 2004 that the wife was pregnant. Although she immediately brought this fact to the attention of the immigration officers, on her own account (see paragraph [12] above), when asked whether she felt fine, she said 'yes'. And it is now common ground that the medical notes which were referred to in paragraph 28 of the claimants' grounds (see paragraph [30] above) were not available to the Secretary of State prior to the wife's release from detention on 25 October 2004. Moreover, the mere fact of pregnancy does not, of itself, make it unlawful to detain a woman whose detention can otherwise be justified. Chapter 38 of the Secretary of State's Operations Enforcement Manual, which was, at the material time, the most recent public statement of the Secretary of State's policy in relation to detention of immigrants, set out in paragraph 38.8 that pregnant women:

"are normally considered suitable for detention in only very exceptional circumstances ... unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this."

There was no question of imminent confinement in October 2004 - the child was not born until 25 February 2005 - so this ground of complaint adds nothing to the more general complaint that there was in any event no justification for detaining the wife after she had claimed asylum on 12 October 2004.

[52]Accordingly, there is, in my judgment, no substance in the first, fifth and sixth complaints. I turn, therefore, to the three complaints of substance, the second, third and fourth. These, in my judgment, raise much more justified complaints and much more serious issues.

[53]First, however, I wish to draw attention to the surprisingly insouciant manner in which the Secretary of State has chosen to conduct his defence of these claims. Notwithstanding Sullivan J's pungent observations, the Secretary of State has neither filed any evidence nor provided any other explanation for his actions. Neither his summary grounds, nor his detailed grounds nor Ms Giovannetti's otherwise detailed skeleton argument provides any explanation. They confine themselves, as we shall see, to almost threadbare legal arguments. Sullivan J pointedly asked "Why was it necessary to detain these Claimants on 11 th October for removal on 12 th October before responding to their Solicitors?" His question remains wholly unanswered. Moreover, although Sullivan J described the Secretary of State's explanation for detaining the wife after she had claimed asylum as "less than impressive," no further explanation of any sort has been forthcoming.

[54]The allegations being made against the Secretary of State are of the utmost gravity. It is said that he has unlawfully detained two people for fifteen days. It is said that in doing so he was seeking to deny them access to legal advice. In these circumstances one might have expected appropriately detailed explanations. There have been none. This silence is all the more extraordinary, and all the more disquieting, in the light of Sullivan J's observations when granting permission.

[55]It should not be necessary to remind the Secretary of State of what has been said in the past by judges of the highest distinction. I go first to what Sir John Donaldson MR said in R v Lancashire County Council ex p Huddlestone

[1986] 2 All ER 941

at page 945:

"if and when the applicant can satisfy a judge of the public law court that the facts disclosed by her are sufficient to entitle her to apply for judicial review of the decision ... [t ]hen it becomes the duty of the respondent to make full and fair disclosure ... [judicial review] is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands."

[56]I should also refer to what Laws LJ said in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs

[2002] EWCA Civ 1409

[2002] All ER (D) 450

(Oct), at para [50]: "there is no duty of general disclosure in judicial review proceedings. However there is - of course - a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide. The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at. If the court has not been given a true and comprehensive account, but has had to tease the truth out of late discovery, it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure".

[57]The Secretary of State cannot complain if, in the circumstances, I draw adverse inferences.

[58]Ms Weston submits that in assessing whether the detention was unlawful I should adopt the same approach as that of Field J in Youssef v The Home Office

[2004] EWHC 1884 (QB)

. In that case the claimant had been detained by the Secretary of State in the exercise of his immigration powers. It was common ground (see at para [53]) that it was for the Secretary of State to justify the detention. Counsel argued on behalf of the Secretary of State (see at para [56]) that the standard by which the legality of the detention should be judged is the Wednesbury standard. Field J disagreed. At para [62] he said:

"Whilst it is a necessary condition to the lawfulness for Mr Youssefs detention that the Home Secretary should have been reasonably of the view that there was a real prospect of being able to remove him to Egypt in compliance with Article 3 ECHR, I do not agree that the standard by which the reasonableness of that view is to judged is the Wednesbury standard. I say this both because I can find nothing in the judgement of Woolf J in [R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704 ] that points to this being the standard and because where the liberty of the subject is concerned the court ought to be the primary decision-maker as to the reasonableness of the executive's actions, unless there are compelling reasons to the contrary, which I do not think there are. Accordingly, I hold that the reasonableness of the Home Secretary's view that there was a real prospect of being able to remove Mr Youssef to Egypt in compliance with Article 3 ECHR is to be judged by the court as the primary decision maker, just as it will be the court as primary decision-maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to effect a lawful return are taken in a reasonable time."

[59]I respectfully agree.

[60]I return to the second complaint. It assumes, contrary to the assumption underlying the first complaint, that the relevant policy was that set out in Chapter 38 of the Secretary of State's Operations Enforcement Manual. Paragraph 38.3 deals with what are referred to as 'Factors influencing a decision to detain'. Before listing certain factors that must be taken into account when considering the need for initial or continued detention - these reflect what appears on the 'Notice to Detainee: Reasons for Detention and Bail Rights' - paragraph 38.3 sets out these general principles:

"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."

[61]It will be recalled that the only matters relied upon to justify the initial detention on 11 October 2004 (see paragraph [16] above) were the assertions that "Your removal from the United Kingdom is imminent" and that "You have previously failed or refused to leave the UK when required to do so."

[62]Ms Weston points out that the husband had claimed asylum on arrival, that his further application to the Secretary of State had been outstanding for over three years and that there was no history of failure to comply with the terms of his temporary admission or of absconding in any way. Indeed, he had been faithfully reporting every week. She submits that in all the circumstances it was oppressive, unreasonable and disproportionate to detain him and his wife.

[63]The Secretary of State's response to this as set out in his summary grounds was to assert that the claimants' detention on 11 October 2004 was lawful "given that the claimants were imminently going to be removed and detention was reasonably proportionate in order to achieve an orderly and speedy removal." Beyond a reference to Chahal v United Kingdom

(1996) 1 BHRC 405

and Konan v Secretary of State for the Home Department

[2004] EWHC 22 (Admin)

that was the sum total of the Secretary of State's case. The Secretary of State's detailed grounds added nothing. Ms Giovannetti's skeleton argument confined itself to the bald assertion that the decision to detain was lawful for the reasons indicated in the Notices served on the claimants. It was, she said, for the Secretary of State to assess whether the circumstances justified detention. And it was, she said, the fact that the husband had failed to leave the United Kingdom after the dismissal of his appeal by the Adjudicator on 2 July 2001. So he had, but he had made an application to the Secretary of State on 14 November 2001, prior to the implementation of removal directions on 15 November 2001, and that claim was, of course, still outstanding until some four hours before he was detained.

[64]In my judgment it is not enough for the Secretary of State to be able to show that the circumstances are such that one or more of the boxes on the pro-forma can be ticked. Detention, if it is to be lawful, must be reasonable and it must satisfy the test of proportionality. As the pro-forma itself recites, "Detention is only used where there is no reasonable alternative available." As paragraph 38.3 of the Operations Enforcement Manual puts it, "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" and "All reasonable alternatives to detention must be considered before detention is authorised."

[65]In the present case the Secretary of State has chosen not to provide any explanation for his decision to detain the claimants. I have, therefore, to assess matters in the light of the known circumstances. They are as Ms Weston has described them. Can detention in those circumstances be justified as a reasonable and proportionate response to the situation? In my judgment it cannot. Detention in the circumstances of this case was, in my judgment, oppressive, unreasonable and unnecessary. That appears to have been the provisional view of Sullivan J. I agree entirely with him that, as he put it, there is a need for a firm application of immigration control. But as he went on to say, and I agree, the powers must not be exercised in an oppressive manner. As he pointed out, there was no suggestion here that the claimants had 'gone to ground'. The Secretary of State has conspicuously failed to provide any answer, let alone any satisfactory answer, to my brother's question, "Why was it necessary to detain these Claimants on 11th October for removal on 12th October before responding to their Solicitors?" There is, in my judgment, no satisfactory answer to that question. In all the circumstances, the claimants' detention on 11 October 2004 was, as I have said, oppressive, unreasonable and unnecessary. It was, accordingly, unlawful. Ms Weston therefore makes good her second complaint.

[66]I make clear for the avoidance of doubt that this has nothing to do with the fact that the claimants were detained at 8.30 pm, nothing to do with the fact that their detention that evening was with a view to their removal the following morning, and nothing to do with anything that happened following their initial detention. My decision on this part of the case proceeds quite simply on the basis that there was no proper justification on 11 October 2004 for detaining them.

[67]I turn to the third complaint. As I have said, this was formulated in paragraph 26 of the claimant's grounds as follows:

"effectively the [Secretary of State] was seeking to detain and remove the [husband and wife] without notifying their solicitors ... the [Secretary of State] by seeking to detain and remove without notifying [their] solicitors and doing so 'after hours', effectively was seeking to deny [them] access to legal advice and in so doing acted unlawfully."

In her skeleton argument Ms Weston broadened the attack to include the point that if the claimants' detention was to be lawful, the Secretary of State could not deny them access to legal advice nor deny them access to a court of law.

[68]It is important to note that at no point - neither in his summary grounds nor in his detailed grounds nor in the evidence filed on his behalf - has the Secretary of State ever sought to challenge the wife's account of the events of 10, 11 and 12 October 2004. That account stands unchallenged. Nor has he ever condescended to deal in terms with the serious allegation set out in paragraph 26 of the claimants' grounds. I can only assume that the Secretary of State has not sought to challenge the facts as asserted by the wife because he knows that the attempt would be unsuccessful.

[69]The Secretary of State's case as set out in his summary grounds was two-fold. First, he asserted that "a person subject to immigration control is not as a matter of law denied access to legal advice merely because they are detained in a detention centre." Indeed. But that is not an answer to the claimants' case; it is the very foundation of their case.

[70]Secondly, he asserted, "that the claimants in the instant case were in any event not denied access to legal advice as a result of their detention is in any event amply evidenced by the fact that the claimants were able to secure legal advice, on [their] case, within 812 hours of the receipt of the fresh claim decision." The Secretary of State's detailed grounds added nothing, save to point out that, having obtained legal advice, the wife applied for asylum on 12 October 2004 whilst still in detention. In addition Ms Giovannetti pointed out that the claimants were not denied the facilities to make telephone calls.

[71]As to this Ms Weston observes correctly that the lawfulness of this detention is not to be judged by its consequences. She says that the Secretary of State is seeking to legitimise his actions by reference to an outcome which was not what he intended and which came about only because of the solicitors' fortuitous intervention.

[72]Ms Giovannetti also submitted that there was a large degree of operational content in the detailed planning of detentions in cases such as this. There was, she said, a need to make appropriate use of finite resources and no objection to detaining in the evening persons who might be out at work during the day.

[73]I can dispose of this last point at once. It entirely fails to engage with the gravamen of the complaint. The objection to what was done in this case is not founded on the fact that the claimants were detained at 8.30 pm. Nor is it founded on the fact that it was intended to remove them on an airplane leaving at 7.45 am. Neither of those things, taken in isolation, would be objectionable. The complaint is founded on the fact that the claimants were detained perilously close to the close of business one day with a view to their being removed before the opening of business the following morning that being done, so it is said, in order to deny them access to legal advice and access to the court.

[74]The fundamental importance of the right of unimpeded access to legal advice and unimpeded access to the courts by those who are detained by the State has been emphasised on numerous occasions in recent years by the House of Lords. I need only mention Raymond v Honey

[1983] 1 AC 1

, R v Secretary of State for the Home Department ex p Simms

[2000] 2 AC 115

and R (Daly) v Secretary of State for the Home Department

[2001] UKHL 26

[2001] 2 AC 532

. As Lord Cooke of Thorndon said in the latter case at paras [30]-[31], "access to a court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege" are rights that are "inherent and fundamental to democratic civilised society." As Lord Hope of Craighead said in R v Shayler

[2002] UKHL 11

[2003] 1 AC 247

, at para [73]:

"Access to legal advice is one of the fundamental rights enjoyed by every citizen under the common law."

[75]Moreover, as Lord Bingham of Cornhill explained in R (Daly) v Secretary of State for the Home Department

[2001] UKHL 26

[2001] 2 AC 532

, at para [5]:

"Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. "

[76]In Three Rivers District Council and others v Governor and Company of the Bank of England (No 6)

[2004] UKHL 48

[2005] 1 AC 610

, at para [34], Lord Scott of Foscote explicitly related the right to communicate confidentially with a legal adviser under the seal of legal professional privilege to our society's belief in the rule of law.

[77]It follows that any improper interference by the executive with these rights is a matter of the utmost gravity.

[78]I am far from being the first judge to express grave concerns about the Secretary of State's practice in cases such as this. I refer to what Collins J said in R (Collaku) v Secretary of State for the Home Department

[2005] EWHC 2855 (Admin)

. That was a case where the claimant was detained in circumstances strikingly similar to those in the present case. Further representations had been made in May 2004. Silence ensued until on 22 March 2005 the claimant was detained, informed that his representations had been rejected and told that he was to be removed the following morning. Frantic activity by his legal advisers enabled an application to be made to the duty judge at about 9 pm.

[79]Collins J expressed himself in trenchant terms at para [14]:

"The Home Office practice involving delay in deciding a claim but then of arresting and serving the refusal at one and the same time with a view to removal within a day or two, often at weekends and frequently early in the morning, is one that is to be deplored. This court has deplored it on many occasions. It leads to unnecessary applications to the duty judge. It has the effect of preventing those who are to be removed from seeking proper legal advice to which they may be entitled and, even if the Home Office takes the view that there is no conceivable merit to be both found in any possible challenge, this is not the way to go about it. A reasonable time must be provided to enable representations to be made, if any are to be made, certainly to enable advice to be sought if the person to be removed wishes to obtain it. Quite apart from anything else, the approach to the duty judge will almost inevitably result in an order preventing the removal until the matter can be sorted out, either the following day or the next working day, when an application can be put before the Administrative Court. The result is that the flight ticket has to be given up - it is often more than one ticket because frequently an official will accompany the person to be removed - so public money is inevitably wasted."

I respectfully agree with every word of that.

[80]Why in the instant case were the claimants detained at 8.30 pm with a view to being removed at 7.45 am the next morning? Why was the decision letter not sent to their solicitors until 4.16 pm the day before the planned removal - at a time after the courts would have risen and very close to the close of business? Why were the solicitors not told, even at that stage, that plans had already been made to remove their clients early the following morning? (It will be recalled that those plans had been put into operation, unbeknown to the claimants and their solicitors, the day before the letter was sent to the solicitors. It will also be recalled that the letter merely contained the formulaic statement that "steps will now be taken to remove them from the United Kingdom.") The Secretary of State has chosen not to provide answers to any of these questions.

[81]In the absence of any proffered explanation - and there is none - I am driven to the conclusion that these steps were indeed taken, and were deliberately taken in a planned and methodical way, in

[82]It is no thanks to the Secretary of State or his minions that the claimants were in fact able to make contact with their solicitors, at 1.30 am, some five hours after they had been detained and only some six hours before they were due to be removed. It is no thanks to the Secretary of State or his minions that the solicitors were able to stop the process in its tracks without having to make an application, in the early hours of the morning, to the duty judge, because of the happenstance - what Ms Giovannetti referred to as the serendipitous fact - that the wife had not previously claimed asylum. I draw attention in this connection to the wife's unchallenged evidence (see paragraph [12] above) that she was initially refused permission to contact her solicitor.

[83]The fact that some eleven hours was planned to elapse between the claimants being detained and their being removed is not enough to save the Secretary of State - not when that period of eleven hours spanned the night hours from 8.30 pm to 7.45 am. Nor, as I have already pointed out, can the Secretary of State be saved by the fact that in the event the claimants' solicitors were able to intervene. The Secretary of State cannot legitimise his actions by reference to an outcome which was not what he intended and which came about only because of the solicitors' fortuitous intervention.

[84]Absent any challenge to the wife's evidence, and absent also any explanation from the Secretary of State, I am driven to conclude that the claimants' detention was deliberately planned with a view to what in my judgment was a collateral and improper purpose - the spiriting away of the claimants from the jurisdiction before there was likely to be time for them to obtain and act upon legal advice or apply to the court. That purpose was improper. It was unlawful. And in my judgment it renders the detention itself unlawful.

[85]In this context it is worth going back to what Lord Steyn said in R (Anufrijeva) v Secretary of State for the Home Department

[2003] UKHL 36

[2004] 1 AC 604

. The issue in that case was whether an uncommunicated administrative decision can bind an individual. Explaining why it cannot Lord Steyn said this at para [26]:

"The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system."

He continued at para [28]:

"This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the comer decisions or knocks on doors in the early hours. That is not our system."

[86]Referring to what had been revealed of Home Office practice in that case, Lord Steyn commented at para [24] that:

"It provides a peep into contemporary standards of public administration. Transparency is not its hallmark. It is not an encouraging picture."

The same, I regret to have to say, applies in the present case.

[87]What the present case and others like it reveal, in my judgment, is at best an unacceptable disregard by the Home Office of the rule of law, at worst an unacceptable disdain by the Home Office for the rule of law, which is as depressing as it ought to be concerning.

[88]In my judgment, Ms Weston makes good her third complaint.

[89]Finally, I turn to her fourth and last complaint. Ms Weston submits that even if removal was imminent on 11 October 2004, it was no longer imminent after the wife had claimed asylum in the early hours of 12 October 2004. As she points out, even if the wife's claim was refused (as it was on 22 October 2004) she was entitled to an in country appeal (which was not dismissed until 26 January 2005). So there was, she says, quite obviously no prospect of early removal. Nonetheless, as we have seen, not merely did the Secretary of State serve a further notice on 17 October 2004; he detained the husband and wife until 25 October 2004.

[90]The notice served on 17 October 2004 is a curious document, for it relied upon a number of grounds additional to those set out in the notice which had been served only six days earlier. It was now additionally asserted (see paragraph [18] above) that "You are likely to abscond if given temporary admission or release", "I am satisfied that your application may be decided quickly using the fast track procedure", "You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place" and "You have used or attempted to use deception in a way that leads us to consider you may continue to deceive."

[91]The Secretary of State's response to this complaint in his summary grounds was brief:

"The detention did not cease to be unlawful on 12 th October when [the wife] lodged an asylum claim. The reason for this is that [her] claim was a claim which could be determined swiftly."

Apart from a reference to R (Saadi) v Secretary of State for the Home Department

[2002] UKHL 41

[2002] 1 WLR 3131

, Konan v Secretary of State for the Home Department

[2004] EWHC 22 (Admin)

and Kpandang v Secretary of State for the Home Department

[2004] EWHC 2130 (Admin)

that was all.

[92]This was elaborated by the Secretary of State in his detailed grounds with the assertion that:

"the timing of the [wife's] asylum application clearly indicated that it had been made in order to frustrate a lawful removal of the claimants, particularly in light of the fact that she had been in the UK variously since 1997 and continuously throughout 2002 and had not claimed asylum"

. Moreover, since there was, so it was said, every prospect of the Secretary of State being able to respond to her asylum claim very promptly, he was, it was said, "plainly entitled" to continue detaining the claimants after 12 October 2004.

[93]Ms Giovannetti submitted that the fact that the wife had made an asylum claim on 12 October 2004, but not before, justified a re-appraisal of the risk of the family absconding and justified the different and additional grounds relied on in the Notice of 17 October 2004. As against that, however, Ms Giovannetti also submitted that, once it became apparent that removal would not be able to proceed in the short term, the claimants were released from detention.

[94]Let it be assumed for the sake of argument, though 1 am far from convinced, and no evidence has been led to support the assertion, that, for the reasons suggested by Ms Giovannetti, there were now grounds for believing that the claimants might abscond. This of itself does not justify their continuing detention once the wife had made her claim to asylum. At that point, as it seems to me, it must, for the reasons given by Ms Weston, have been obvious that the claimant's removal was not going to be soon, let alone imminent. Even assuming that their detention had previously been lawful, the claimants ought to have been released on 12 October 2004. They were not released until 25 October 2004. No explanation of any sort has ever been forthcoming as to why the claimants were released on that date. After all, the Secretary of State had refused the wife's application for asylum on 22 October 2004 and she did not exercise her right of appeal until 28 October 2004. The decision appears to have been completely arbitrary. It is said by the Secretary of State in his detailed grounds that the claimants would have been released on 23 rather than 25 October 2004 but for the fact that their solicitors failed to respond to a request for details of the claimant's temporary address. The argument is utterly disingenuous, for 23 October 2004 was a Saturday. The relevant request was faxed to the solicitors' office when it was closed (as might have been anticipated) and the solicitors responded promptly on the Monday, 25 October 2004. Quite apart from that, and in any event, the point still remains. No explanation has been provided for the decision to release them on 23 October 2004.

[95]Furthermore, from beginning to end no explanation of any sort has been provided as to why on 17 October 2004, though seemingly not only six days before on 11 October 2004, it was thought that the husband had been guilty of deception - a serious allegation that has never been particularised. The husband, after all, had done nothing at all between 11 and 17 October 2004. It was his wife who on 12 October 2004 applied for asylum. The discrepancies between the grounds for detention being relied upon on 11 October 2004 and those being relied upon on 17 October 2004, coupled with the virtually complete lack of any explanation - indeed, any explanation at all for the sudden inclusion of the reference to deception - suggest a somewhat cavalier attitude which is disquieting in a context as serious as one where personal liberty is at stake.

[96]Be that as it may, the claimants' continuing detention after 12 October 2004 was, in my judgment, unlawful on the simple ground that there was no longer any reasonable basis for believing that their removal was likely to be soon, let alone that it was likely to be "imminent" - the only basis for detention which was being asserted between 11 and 17 October 2004.

[97]T. In my judgment Ms Weston makes good her fourth complaint.

[98]The claimants seek(1) a quashing order in relation the Secretary of State's undated decision served on 11 October 2004,

(2) a declaration that their detention from 11 October 2004 to 25 October 2004 was unlawful and

(3) damages, including compensation under

Article 5(5) of the Convention

and both aggravated and exemplary damages: see Thompson v Commissioner of Police of the Metropolis

[1998] QB 498

[1997] EWCA Civ 3083

In my judgment, and for the reasons I have given, the claimants are not entitled to a quashing order. They are, however, entitled to the declaration and to damages. The damages will have to be assessed. There will have to be a further hearing at which the court will need to consider both the basis upon which the damages should be assessed (a matter on which I have heard no argument) and also the appropriate quantum of the damages. I will hear counsel on the appropriate directions which I should now give with a view to the assessment of damages.

order

i) to give both the claimants and their solicitors the minimum possible time to react to the decision letter; ii) not to alert the solicitors to the fact that their clients' removal was imminent; iii) to minimise the chance of the claimants being able to contact their solicitors before they were removed; iv) to minimise the chance of the solicitors being able to do anything effective before their clients were removed; and v) to minimise the chance of the claimants being able to apply to a judge. In short, as the claimants assert, in order to deny them access to legal advice and access to the court.

Cited in 10 later judgments

and 1 more case

HH & Ors v The Secretary of State for the Home Department 2008