Mpasi, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 2562 (Admin)

[2007] EWHC 2562 (Admin)

Case No CO/5898/2004

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 07/11/2007

Before

THE HONOURABLE MR JUSTICE BEATSON

Between

THE QUEEN ON THE APPLICATION OF WILLY MUTWADI MPASIClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

(Transcript of the Handed Down Judgment of

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Ms M Phelan (instructed by Fisher Meredith) for Claimant

Mr A Payne (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing dates: 16 October 2007

Judgement

[1]The claimant is a citizen of the Democratic Republic of Congo. In this application for judicial review filed on 24 November 2004, and subsequently amended, he challenges the decision of the defendant to detain him between 8 and 30 November 2004 when he was granted bail. Permission was refused on the papers on 14 February 2005 by Stanley Burnton J, but following a hearing on 21 September, Mr David Lloyd Jones QC (as he then was) gave permission

2005 EWHC 2608

Admin.

[2]The Deputy Judge refused the claimant permission to challenge the defendant’s decision on 23 November 2004 that representations submitted by him on 4 November did not amount to a fresh claim for asylum. That decision was the subject of a successful appeal by the claimant to the Court of Appeal: see WM v Secretary of State for the Home Department

[2006] EWCA Civ 1495

. The defendant has since accepted that the claimant had a fresh claim for asylum but has rejected that claim. An appeal to the Asylum and Immigration Tribunal is pending.

[3]The issues concerning the claimant’s detention before the institution of the judicial review proceedings on 24 November differ from those for the remainder of the period. In the period from 8 to 24 November the issue is the legality and reasonableness of detention where further representations have been or are to be made but no judicial review proceedings have been instituted or threatened. This includes whether the defendant was entitled to rely on the policy of not having regard to a threat to institute judicial proceedings in deciding whether to detain or to maintain detention. In Nadarajah v Secretary of State for the Home Department

[2003] EWCA Civ 1768

it was held that, in the light of the defendant’s generally known policy not to maintain detention after having been notified of a judicial review challenging removal, the defendant could not rely on the policy to disregard threats to institute such proceedings because at that time that aspect of the policy had not been made public. The detentions in Nadarajah’s case were in January and February 2002. The judgment of the Court of Appeal was handed down on 8 December 2003. The question in this case is whether that aspect of the policy remained inaccessible in October and November 2004.

[4]In the period after 24 November the issue is the impact on the claimant of the policy not to maintain detention after having been notified of a judicial review challenging removal. The defendant submits that, where the application for judicial review alleges that the removal directions are unlawful by reason of an outstanding application for asylum but that application has since been rejected, detention may be justified notwithstanding the policy.

The factual background:

[5]The claimant’s history prior to his detention on 8 November can be summarised as follows. He arrived in the United Kingdom and claimed asylum on 24 April 2003. His claim was refused on 20 May 2003, an adjudicator rejected his appeal on 27 August and the Immigration Appeal Tribunal refused him permission to appeal on 20 September 2003. His appeal rights were exhausted on the expiry of the short period in which he was able to apply for statutory review and thereafter he had no legal basis for remaining in this country and was removable.

[6]The claimant was detained on 12 November 2003. After emergency travel documents were issued on 15 January 2004 the defendant made many attempts to remove him during 2004. Information about these attempts is contained in the Home Office case notes. Removal directions were set on eight occasions during the time he was in detention and when he was on bail between 7 October and 8 November. They were set for 3 and 24 February, 20 March, 22 June, 10 September, 5 October, 4 and 10 November. In February it was not possible to remove the claimant because he became disruptive and the airline refused to carry him. Representations were made on his behalf on 6 February and later that month but the defendant refused to accept these as amounting to a fresh claim. Thereafter a variety of operational reasons prevented removal. These included shortage of escort staff, the expiry of the claimant’s travel document and the need for new documents to be issued, unspecified “political reasons”, the refusal of the airline to carry the claimant because it had other removals on the flight, and the refusal of an intermediate country to accept removals in transit.

[7]On 7 September, the day after the removal directions for 10 September were set, the claimant’s solicitors indicated that they wished to submit further evidence. Those directions were cancelled for “political reasons”. On 16 September the claimant informed the immigration authorities that he had passed evidence to his solicitors which would need translating. By 21 September the immigration authorities had been notified of a bail hearing before an adjudicator scheduled for 7 October. On 23 September removal directions were set for 5 October but on 29 September they were cancelled for operational reasons. On 1 October Mr Peter Viggers MP wrote to the Minister asking that the claimant’s removal be deferred pending the bail hearing scheduled for 7 October. On 3 October removal directions were set for 4 November but not served because of the need to reply to Mr Viggers. That was done on 7 October.

The Claimant’s bail and subsequent detention:

[8]Bail was granted on 7 October by an adjudicator. The bail conditions were that the claimant live and sleep at a prescribed address in Hampshire, report to Fareham police station every Monday, and appear before an adjudicator in London on 30 November. There is no record of the reasons given by the adjudicator for granting bail. A witness statement by the claimant’s surety, Mr Brown, states that the submissions in support of bail relied on fresh evidence which supported the claimant’s asylum claim. The evidence included an article in a Congolese newspaper dated 26 November 2003 naming the claimant as a medical professional who had been forced to flee the country. Mr Brown states that at the request of the adjudicator a copy of the article was produced and read by the adjudicator. It is common ground between the parties that the reason for bail was the fresh material and not other concerns about the legality or reasonableness of the claimants’ detention.

[9]It appears that by 29 October the defendant was contemplating detaining the claimant again. The Home Office’s case notes contain an entry for that date stating that documents authorising his detention when he reported to Fareham police station on 1 November had been faxed to the police station. However, when he reported the police did not arrest him. On 3 November the removal directions for 4 November were cancelled and reset for 10 November.

[10]The representations in support of a fresh asylum claim and supporting documents were sent to the defendant by the claimant’s former solicitors in a letter dated 22 October. It is common ground that this letter had not reached the defendant on 3 November when the removal directions were set for 10 November.

[11]On 7 November, pursuant to the power in paragraph 22(1A) of Schedule 2 to the Immigration Act 1971 (see paragraph 20 below), the claimant was served with a variation of the conditions of his bail by an immigration officer and required to report to Fareham police station on 8 November. The reason given in the relevant form, IS91R, for detaining the claimant is “your removal from the United Kingdom is imminent”. The form states that the decision was reached on the basis of two of the fourteen factors listed; “you do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place” and “you have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK” The form does not rely on a failure to comply with conditions.

[12]It appears that, by then, the letter containing the representations in support of a fresh asylum claim and a further letter dated 3 November from the claimant’s solicitors had been delivered to the defendant. The Royal Mail track and trace record suggests the letters were delivered on 4 November. The defendant does not, however, accept that the representations were received then. Mr Payne submitted they were only received on the afternoon of 8 November after the claimant was detained. The Home Office case notes refer to a telephone call from Mr Brown, the surety, at 13.50 on 8 November asking where the claimant was and whether the new evidence with regard to his claim had been considered. The case notes state that the Home Office file “does not seem to contain further representations/evidence”. A computer printout, however, states that the letter was received on 4 November, that the file was with “casework”, and the letter was to be passed to “casework”. It would seem this took several days.

[13]By 8 November it also became clear that the removal directions set for 10 November would not be effective because Kenya, through which the claimant was to travel, would not accept persons being removed travelling on an emergency travel document in transit. In the light of this and the further representations, they were cancelled. A possible alternative on 23 November was noted.

[14]On 9 November the claimant’s former solicitors wrote stating that his detention was illegal because he had been granted bail by an adjudicator and a decision was pending with regard to his asylum claim. It appears from the defendant’s case notes for 10 November that the further representations were shortly to be considered. It is stated that “it is OK to set RDs for 23/11/04”. That day, however, the defendant was informed that the airline was unable to take an escorted removal on the flight on 23 November because it already had another such person on the flight. The defendant replied to the claimant’s former solicitors’ letter on 11 November. The defendant stated that the detention was pursuant to the power in paragraph 22(1A) of Schedule 2 to the 1971 Act and remains appropriate, that the representations were being considered, and, should they be dismissed, removal would proceed on 25 November.

[15]On 16 November the case notes state that detention is appropriate pending the review of representations and arranging removal directions. There are other entries about the removal directions set for 25 November. On 18 November representations were received from another MP. On 19 November the notes state the defendant is confident the representations will be dealt with by 25 November. As, however, insufficient notice had been given to the French authorities of the transit of an “escorted removal”, the arrangements for 25 November had to be cancelled.

[16]On 23 November a provisional booking was made for 9 December. The case notes record that the defendant had decided that the claimant’s representations did not amount to a fresh asylum claim, but the decision was not to be sent until it was confirmed that Ministers had dealt with the MP’s representations. The notes for 24 November state that the claimant’s present solicitors were told that detention would be maintained until the grounds for judicial review were received and that the letter dealing with the representations was faxed to them that day. The claimant’s case is that the refusal letter was faxed after close of business on 25 November. The application for permission to move for judicial review was also filed on 24 November. The notes record that the defendant received the claim form at 7.15pm.

[17]It appears from the notes on 25 November that consideration was being given by the defendant to an application to expedite the consideration by the court of the claimant’s judicial review application. It is said that a decision could not be made until the claimant’s solicitors furnished the grounds for judicial review. The claimant’s solicitors sent these on 25 November. There are further references in the notes for 29 November to the inability to estimate how long it will take for the judicial review until the defendant had the grounds and to the detention being maintained until the defendant had sight of them. The return date for the bail granted on 7 October was 30 November. On that day an adjudicator granted the claimant bail. The amended grounds for the judicial review filed on 24 November also reached the defendant that day.

The statutory framework:

[18]The power to detain a person pending a decision to give or refuse him leave to enter or pending a decision to direct that he be removed or his removal is contained in Schedule 2 to the Immigration Act 1971 (the “1971 Act”). Paragraph 16(2) of Schedule 2 provides:

“If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given … [that he be deported]…, that person may be detained under the authority of an immigration officer pending – (a) a decision whether or not to give such direction; (b) his removal in pursuance of such directions.”

[19]By paragraph 21 of Schedule 2, a person liable to detention or to be detained under paragraph 16 may be temporarily admitted to the United Kingdom but this shall not prejudice a later exercise of the power to detain him. By paragraph 21(2) of Schedule 2: “So long as a person is at large in the United Kingdom by virtue of this paragraph he shall be subject to such restrictions as to residence [as to his employment or occupation] and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer”.

[20]Paragraph 21 is thus concerned with the temporary admission of persons liable to detention. Paragraphs 22-24 are concerned with the temporary release of persons liable to detention. Paragraph 22 deals with release on bail. By paragraph 22(1A):

“[A chief immigration officer] or an adjudicator may release a person… [detained under paragraph 16(1), (1A) or (2)] on his entry into a recognisance… conditioned for his appearance before an immigration officer at a time and place named in the recognisance… or at such other time and place as may in the mean time be notified to him in writing by an immigration officer.”

[21]Paragraph 24 deals with the arrest of a person who has been released by virtue of paragraph 22. By paragraph 24(1)(a) an immigration officer or constable may arrest such a person without warrant if he has reasonable grounds for believing that or to suspect that the person is breaking, has broken or is likely to break the conditions of his release. By paragraph 24(2) a person arrested under paragraph 24(1) “shall as soon as practicable be brought before an adjudicator or, if that is not practicable within 24 hours, before a justice of the peace…”.

[22]Provisions restricting the ability of the defendant to remove a person from the United Kingdom pursuant to immigration control are contained in sections 77 and 78 of the Nationality Immigration and Asylum Act 2002. By section 77: “(1) While a persons claim for asylum is pending he may not be- removed from the United Kingdom in accordance with a provision of the Immigration Acts, or required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2) In this section –(a) “claim for asylum” means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and

(b) a persons claim is pending until he is given notice of the Secretary of State’s decision on it. … (4) Nothing in this section shall prevent any of the following while a claim for asylum is pending – (a) the giving of a direction for the claimants removal from the United Kingdom, … or

removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

[23]By section 78, while a person’s appeal under section 82(1) is pending he may not be removed from the United Kingdom in accordance with a provision of the Immigration Acts.

The authorities:

[24]A distinction must be drawn between the existence of the power to detain pursuant to Schedule 2 to the 1971 Act and the exercise of that power. The power to detain is a broad one. In R(Khadir) v Secretary of State for the Home Department

[2005] UKHL 39

[2006] 1 AC 207

at [32] Lord Brown of Eaton-under-Heywood stated that “so long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile”. “Pending” removal or departure in Schedule 2 of the 1971 Act means no more than “until”. His Lordship also stated (at [34]) that while the regime as presently administered is harsh, “that harshness has been sanctioned by Parliament and cannot affect the true construction of an application of paragraph 16(2) and 21 of Schedule 2”.

[25]In R (Konan) v Secretary of State for the Home Department

[2004] EWHC 22 (Admin)

Collins J stated (at [21]) that the power to detain pending removal is not dependent on a fear of absconding or of any other misconduct by the person in question. “Provided it is exercised for the purpose of removal, it is lawful”.

[26]After considering the Secretary of State’s policy which limited the wide power given in the 1971 Act (on which see paragraphs 34-39 below), Collins J stated (at [33]) that, although in that case discretion should clearly have been exercised in favour of releasing the claimant, an initial period of detention (in that case between 10 and 24 June 2002) was not unlawful. This was because the defendant considered removal from the UK to be imminent, the claimant was considered not to have enough close ties to make it likely that he would stay in one place, and no application for judicial review had been lodged.

[27]What of the exercise of the power to detain? The authorities were reviewed in R (A Somalia) v Secretary of State for the Home Department

[2007] EWCA Civ. 804

. Toulson LJ stated (at [43-45]) that the exercise of the power is limited in two fundamental respects. The first limitation, derived from the judgment of Woolf J in R v Governor of Durham Prison, ex parte Hardial Singh

[1984] 1 WLR 704

, is that the power may be exercised only for the purpose for which the power exists. Woolf J stated (at 706) that the power to detain “…can only authorise detention if the claimant is being detained… pending his removal. It cannot be used for any other purpose.”

[28]The second limitation is that the power to detain may be exercised only during such period as is reasonably necessary for the purpose of removal. In ex parte Hardial Singh Woolf J stated that:

“…as the power is given in order to enable the machinery of deportation to be carried out… the power of detention [is] impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case.”

[29]In Khadir’s case Lord Brown of Eaton-under-Heywood stated (at [32]):

“Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i.e. throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed.”

[30]Thus, where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing the persons who are intended to be deported within a reasonable period, it would be wrong for him to seek to exercise the power of detention.

[31]In ex parte Hardial Singh Woolf J stated that he regarded it: “…as implicit that the Secretary of State should exercise all reasonable expedition to ensure that steps are taken which will be necessary to ensure the removal of the individual within a reasonable time” and “… if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, … it would be wrong for the Secretary of State to seek to exercise his power of detention.”

and

[32]It is clear that, because the liberty of the individual is being curtailed by administrative detention, it is for the court to determine whether the length of detention is reasonable: see R (A Somalia) v Secretary of State for the Home Department at [62] and [71] and the authorities considered by the Court of Appeal, including ex parte Hardial Singh, Khadir’s case; R (ID) v Secretary of State for the Home Department

[2005] EWCA Civ 38

; Youssef v The Home Office

[2004] EWHC 1884

. Toulson LJ stated that there may possibly be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and which it will no doubt take account of, but the court is the primary decision-maker and must determine the legal boundaries of administrative detention.

[33]The reasonableness of detention will depend on the circumstances of the case. In R (A Somalia) Toulson LJ (with whom Longmore LJ agreed) stated (at [54]) that a risk of absconding and a refusal to accept voluntary repatriation are important, and often decisive, factors in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. Keene LJ (at [77] – [79]) considered that refusal to accept voluntary repatriation is not a trump card and its main significance is often in the evidence it provides of a likelihood of the individual absconding if released. The court regarded a risk of offending if the person is not detained as a relevant factor the strength of which depended on the likelihood of the risk occurring and the potential gravity of the consequences.

The Secretary of State’s policy on detention:

[34]The Secretary of State publishes an operation enforcement manual. Chapter 38 of this contains the policy in relation to the detention of immigrants. Chapter 38 refers to form IS91R, which sets out 5 reasons for a person’s detention and 14 factors which can form the basis of the decision. At the time of WM’s detention in November 2004, chapter 38 was not available on the IND website because it was being revised.

[35]The material parts of chapter 38 and IS91R are set out in the decision of the Court of Appeal in Nadarajah v Secretary of State for the Home Department

[2003] EWCA Civ 1768

, which considered the policy. In the context of this case it suffices to record that the policy states:

“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 detention “must be kept under close review to ensure that it continues to be justified”

. The factors that must be taken into account include the likelihood of the person being removed and, if so, after what time scale, evidence of previous absconding or failure to comply with conditions of temporary release or bail, and whether there is an outstanding appeal, an application for judicial review or representations which afford an incentive to keep in touch.

[36]In Nadarajah’s case the Court of Appeal (at [24]) summarised the part of the policy concerned with applications for judicial review as follows:

“Where proceedings have been initiated which challenge the right to remove an immigrant, it is not the policy of the Secretary of State to detain an immigrant on the ground that his removal is imminent. Normally, in such circumstances he will be granted temporary admission pending the result of those proceedings.”

The Court also stated (at [58]) that an important aspect of the policy is that:

“… when deciding whether removal is imminent the immigration service will pay no regard to a statement by the immigrant, or those representing the immigrant, that proceedings challenging the right to remove the immigrant will be initiated.”

[37]As to the legality of the policy, the Court observed (at [60]) that it restricts detention of those who have no right to enter this jurisdiction to a far greater degree than the provisions of Article 5(1)(f) require. The only question was whether the policy provides for or permits arbitrary or irrational treatment. The Court stated that it did not: "We can see nothing arbitrary or irrational about a policy under which members of the immigration service will detain a person whom they are about to remove, in circumstances where they have reason to doubt whether that person will provide the co-operation necessary for an orderly removal. We can see nothing arbitrary or irrational about a policy of not normally detaining an individual whom they would wish to remove, in circumstances where that person's removal is not imminent. The automatic presumption that removal is not imminent that applies as soon as judicial proceedings challenging removal are commenced will not always reflect reality. It is a pragmatic rule of thumb, which favours the immigrant. It avoids the necessity for immigration officials to attempt to evaluate the merits of each application for permission to seek judicial review.” (at [61])

[38]The Court also stated (at [62] –[63]) that the policy of not having regard to mere intimations of intention to bring proceedings challenging removal when considering whether removal is imminent is neither arbitrary nor irrational. Treating all such intimations as sufficient would encourage tactical threats to bring judicial proceedings. The alternative of deciding whether an intimation is made in good faith and with reasonable prospects of success rather than merely in order to buy time would place a considerable burden on the immigration service.

[39]The Court, however, held (at [66] –[67]) that because this aspect of the policy was neither published nor known at that time, it was not accessible and could not be relied upon. Earlier in the judgment (at [42]) it stated that:

“nothing in [the] policy suggests, however, that removal will not be treated as imminent merely because there has been an intimation that suspensive proceedings will be commenced.”

Accordingly:

“Those acting for the detained immigrants in that case had given notice of their intention to seek judicial review. The court stated that, having regard to those aspects of the policy that had been made public, they could reasonably expect, that the immigrants would not be detained on the ground that their removal was imminent. “The only basis upon which the Immigration Service could treat [their] removal as imminent was by applying that aspect of the … policy which had not been made public, namely that no regard would be paid to an intimation that judicial review proceedings would be instituted. The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public”

The legality of the detention from 8-24 November:

[40]Miss Phelan submitted that the decision to detain the claimant was unlawful, unreasonable and disproportionate for several reasons. First, since bail had been granted by an adjudicator on 7 October, it was clear that at that time the adjudicator did not consider that he posed a risk of absconding or not complying with bail conditions. Miss Phelan submitted that where bail is granted there must be a good reason to set it aside and there was no such reason here. The claimant complied with his reporting requirements. The only change in his circumstances since bail was granted was that he had made further representations and argued that they amounted to a fresh asylum claim. Those representations, however, meant he was no longer removable.

[41]Secondly, Miss Phelan relied on the fact that, at the time of the claimant’s detention the defendant’s policy of ignoring threats to institute judicial review proceedings had not been published and was not therefore accessible: see paragraph 21 of her skeleton argument, relying on the decision in Nadarajah’s case.

[42]Thirdly, Miss Phelan submitted that the only reason for detention given on form IS91R was that the claimant’s removal is imminent. The only factors stated to be considered are insufficiency of ties to make it likely that the claimant would stay in one place and no satisfactory evidence of identity, nationality or lawful basis to be in the UK. She submitted that the form gives no indication that the defendant took into account the claimant’s previous immigration history which could have been done by ticking the box next to “you have previously failed or refused to leave the UK when required to do so”. Miss Phelan submitted that the court should have regard to the reasons given at the time of detention and subsequently and not reasons given after the institution of proceedings.

[43]Finally, Miss Phelan submitted that the cancellation of the removal directions set for 10 November and then those for 23 and 25 November showed that it was unreasonable to continue to detain the claimant.

[44]On the lawfulness of the detention during this period, I accept Mr Payne’s submissions. It is clear, for example from the number of attempts to set removal directions, that the purpose of detaining the claimant, both before he was granted bail and on 8 November, was removal. Accordingly, there was power to detain him: see R v Governor of Durham Prison ex parte Hardial Singh

[1984] 1 WLR 704

, 706; Konan v Secretary of State for the Home Department

[2004] EWHC 22 (Admin)

at [21].

[45]The issue is whether the power was exercised reasonably. The court is the primary decision-maker and it is for it to determine the legal boundaries of administrative detention curtailing the liberty of an individual. In this context, as Collins J stated in Konan’s case, reasonableness relates to whether removal can be achieved within a reasonable period of time. As Lord Brown of Eaton-Under-Heywood stated in R v Secretary of State for the Home Department ex parte Khadir [2005] UK HL 39 at [32], so long as the Secretary of State remains intent on removing a person and there is some prospect of achieving this, detention is authorised meanwhile.

[46]In the claimant’s case he appears to have told an immigration officer on 16 September that he had passed new evidence in support of his claim to his solicitors. He was given bail on 7 October to enable him to submit new representations on the basis of evidence, some of which was produced at the bail hearing. It is not suggested that there was any other reason for considering that his detention at that time was not justified. It is common ground that the defendant received no representations or any other correspondence or applications from the claimant or his solicitors for over three weeks after he was given bail.

[47]It appears from the case notes that the defendant was still working towards a removal on 4 November. The first reference in the notes to detention is on 29 October. By that time the defendant was entitled to conclude that a reasonable time had been allowed for the further representations to be made and that, as they had not, the circumstances obtaining at the time bail was given had changed. This is not mentioned in form IS91R, but there is no appropriate item on the list of boxes to tick in order to do so, and the closest item, “you have not produced satisfactory evidence of your… lawful basis to be in the UK” was ticked.

[48]It is, to say the least, unfortunate that the letters sent by the claimant’s former representatives by recorded delivery and which appear to have been delivered to the defendant on 4 November had not been matched to the claimant’s file by 7 November when the ISGIR was completed or by 8 November when he was detained. That does not, however, render the decision to detain him unlawful. In any event, very soon after he was detained on 8 November the defendant became aware of the representations. The defendant was entitled to take the view that the representations received did not preclude removal from being imminent. It is clear that those reviewing the claimant’s case were confident that the representations would be considered before 25 November, the date then scheduled for him to be removed. This belief was turned out to be justified. The defendant did not list the claimant’s immigration history as one of the factors justifying detention on form IS91R. This did not, however, disable her, once she knew of the representations, from concluding that, in the light of that history, the numerous previous attempts to remove him, and the previous representations, the further representations did not mean removal was no longer imminent.

[49]I turn to the submission based on the fact that the defendant’s policy of ignoring threats of judicial review was not published in October or November 2004. By then, the Court of Appeal’s decision in Nadarajah, promulgated ten months earlier, had received a great deal of publicity and had been considered in other cases, such as Konan’s case. In these circumstances it is not arguable that this aspect of the policy was not sufficiently accessible to advisers acting the immigration field. The claimant’s present solicitors were aware of it: see paragraph 21 of Miss Phelan’s skeleton argument. There is no evidence that his former representatives were unaware of it. Irrespective of this, however, this submission is unfounded. At that stage the claimant’s former solicitors neither intimated nor threatened a judicial review challenging the claimant’s removal. Their letter dated 22 October containing the representations only said that they were taking counsel’s opinion for the purposes of judicial review and that dated 9 November stated that the claimant’s detention was illegal because he had been granted bail by an adjudicator and a decision was pending with regard to his asylum claim.

Detention between 24-30 November:

[50]The application for judicial review filed on 24 November stated that the decisions to be judicially reviewed were the decision on 8 November to detain the claimant and the decision on 18 November to set removal directions. The grounds are that the defendant had not considered the evidence submitted by the claimant as a fresh claim for asylum. The remedy sought was an injunction to prevent the claimant’s removal from the jurisdiction “pending the determination of his fresh claim for asylum and reasonable time for the claimant and his solicitors to consider whether to challenge such determination if appropriate”.

[51]Miss Phelan submitted that, after the defendant was notified of this application on the evening of 24 November and agreed that no arrangements for the claimant’s removal would be made until the proceedings were completed, his detention was unlawful. The case notes show that the defendant initially anticipated a time scale of two to three months for the proceedings. The notes state that temporary admission “should be considered”. Miss Phelan submitted that, in the light of the policy that removal is not imminent when judicial review proceedings challenging removal are commenced, the claimant should have been released.

[52]Mr Payne’s submission was based on the fact that the proceedings challenged the claimant’s detention and the decision to set removal directions at a time when there was an outstanding undecided application by him for asylum. He argued that, since that application had been determined by the time the defendant was notified of the proceedings, the proceedings became in substance academic. He submitted that a fax dated 25 November from the claimant’s current solicitors stating that they intended to amend the grounds following the refusal had to be regarded as “an intimation” or a “threat” of judicial review. At that time there were no relevant judicial review proceedings on foot and the policy entitled the defendant to disregard such intimations or threats in assessing continued detention.

[53]Mr Payne also submitted that the Secretary of State was entitled to decide on 25 November to await the grounds for judicial review before deciding whether to release the claimant in order to see whether it was possible to make an application for the judicial review to be expedited. It appears from the case notes that consideration was given to this on 25 and 29 November. Mr Payne submitted that the decision to maintain detention pending the defendant obtaining the amended grounds and considering an application for expedition was reasonable or alternatively, in the light of the high threshold recognised in Konan’s case, not so unreasonable as to render the detention unlawful. He relied on the fact that, unlike Nadarajah’s case, the defendant had considered the application of the policy which, he observed was “normally” to grant temporary admission pending the result of judicial review proceedings.

[54]I accept Miss Phelan’s submission that the judicial review launched on 24 November was not rendered entirely academic by the defendant’s decision to refuse to treat the claimant’s representations as a fresh claim for asylum. The injunction sought to prevent removal was explicitly stated to allow for a reasonable time to consider whether to challenge such decision if made. Although, in the gap between service of the refusal on the claimant on 25 November and the filing of the amended grounds on 26 November there were technically no bars to the claimant’s removal, it is not correct to regard the situation as on all fours with an intimation or threat of proceedings before such proceedings have been launched.

[55]Although I accept that it is not correct to regard the situation in this case as entirely the same as an intimation or threat of proceedings, Mr Payne’s submission that the subject of the challenge had been substantively dealt with has force. The policy about detention where proceedings challenging the right to remove an immigrant have been initiated is “normally” to release the detained person on temporary admission. The question is whether the substantial consideration of the subject of the challenge in the present case together with the possibility open to the defendant to apply to expedite the judicial review means the claimant’s case fell outside the normal range of cases. It is the “normal” (and unfortunately increasing) timescale for a judicial review case which means that, on the institution of proceedings, removal is not “normally” imminent.

[56]Where expedition is granted, there is a much shorter timescale. In the present case, on 25 November the defendant estimated it to be 28 days instead of three or four months. It may thus be reasonable for the defendant to conclude that in such a case removal remains imminent. It is, however, necessary to know what the grounds are in order to decide whether the case is an appropriate one for an application for expedition. It is for this reason Mr Payne submitted that, in the circumstances of this case, it was not unreasonable for the defendant to defer a decision about releasing the claimant until the grounds had been served.

[57]Miss Phelan submitted that, had the claimant’s representatives known that the defendant would not review the detention until the receipt of the amended grounds, it would have been possible for them to ensure they were served forthwith. In the present case they were sent to the Treasury Solicitor by DX and were not received until 30 November. Miss Phelan submitted that, if there was a policy not to consider release until the grounds were available, that policy was not made accessible and, in the light of the general policy, as was the case in relation to threats of proceedings at the time of Nadarajah’s case, the defendant could not rely on it to justify detention.

[58]Notwithstanding the force of Miss Phelan’s submissions, I have concluded that the decision to maintain detention pending the defendant obtaining the amended grounds did not render the detention unlawful. Stanley Burnton J, at paragraph 66 of his judgment in Nadarajah’s case (set out in paragraph 34 of the Court of Appeal’s judgment) stated that it would be reasonable before delaying implementation of a third country removal for the defendant to have sight of the claim form. It is, in my judgment, also reasonable to do so before deciding to release a detained person in a case such as this.The defendant was not relying on an exception to the policy. That the defendant had considered the policy is seen from the note that, once informed of the judicial review, records that temporary admission should be considered. The policy, however, was not invariably to grant temporary admission pending the result of the judicial review proceedings but to do so “normally”. In this case (unlike Nadarajah’s case) the defendant has had regard to that policy. She is entitled to apply it flexibly in accordance with the circumstances of the particular case under consideration.

[59]It is clear that, although a policy may create expectations, a public authority must not disable itself from considering an individual case by reason of a policy. Individual cases must be considered in the light of the policy but not so that the policy automatically determines the outcome: see, for example, R v Ministry of Agriculture, Fisheries and Food ex parte Hamble (Offshore) Fisheries Limited

[1995] 2 All ER 714

at 722a. As the Court of Appeal stated in Nadarajah’s case, in the passage quoted at paragraph [37] above, the presumption that removal is not imminent that applies as soon as judicial proceedings challenging removal are commenced will not always reflect reality. Although the court described this presumption as “automatic” it stated that the policy is “of not normally detaining an individual” in such circumstances. The reality of this case is that the decision to reject the representations as constituting a fresh asylum claim substantially dealt with the judicial review proceedings. All that was left was the claim for an injunction to prevent removal for a reasonable time to consider whether to challenge that decision.

[60]There would not have been anything arbitrary or irrational about a policy under which a decision whether to release an immigrant from detention is delayed pending the service of the grounds to enable consideration to be given to an application for expedition. In the present case it is not argued that there was such a policy. In the particular circumstances of this case, for the reasons I have given, I have concluded that it was not unreasonable for the decision as to release to be deferred pending receipt of the grounds.

[61]For these reasons this application is dismissed.