Ashori, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1460 (Admin)

Case No CO/9361/2007[2008] EWHC 1460 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 22nd May 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF ASHORIClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss S Jegarajah (instructed by Dave Emanuell) appeared for ClaimantMr C Bourne (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: By this claim the claimant seeks a declaration that for part of the time during which he was in immigration detention until his release on 29th February this year, his detention was unlawful. He seeks that declaration with a view eventually to a pursuing a claim for monetary compensation.[2]He has a long and difficult immigration history. On 18th September 2004 he was arrested by police as a suspected immigration offender. He claimed that he had arrived in the United Kingdom on that day by a lorry. He claimed asylum in the identity of Cyros Ashori, the surname in which he brings these proceedings. On 22nd October 2004 his asylum application was refused. He lodged an appeal against it. On 1st February 2005 an Adjudicator dismissed his appeal in trenchant terms:
"On the evidence before me and for the reasons aforesaid, I find the appellant has fabricated a fraudulent asylum claim with no truthful foundation."
[3]He applied for permission to appeal. Permission was refused on 17th March 2005 and on 7th April 2005 his appeal rights were exhausted. As from that moment he had no right to remain in the United Kingdom but he did not leave.[4]On 26th July 2005 he attended the Asylum Screening Unit claiming to be Benjamin Musafari. He confirmed that he had never claimed asylum previously and had not had his fingerprints taken before. He signed a declaration to that effect. Enquiries with the Fingerprint Bureau revealed a perfect match with the fingerprints of Cyros Ashori. Accordingly, on 31st August 2005 he was arrested on suspicion of seeking leave to remain in the United Kingdom by deception. He was taken to Croydon Police Station where he admitted claiming asylum in multiple identities. He was bailed to return there on 20th October 2005. On that date he was charged with one count of seeking leave to remain in the United Kingdom by deception. He failed to attend the Magistrates' Court hearing fixed for the committal on 18th November 2005 and a warrant for his arrest was issued. On 20th May 2006 he was apprehended attempting to stow away on a ship departing from Southampton for the United States of America. He was arrested and taken to Croydon Police Station.[5]On 11th July 2006 he was convicted at Croydon Magistrates' Court of seeking leave to remain by deception and sentenced to eight months' imprisonment and recommended for deportation on the completion of his sentence. His criminal sentence expired on 26th September 2006. Thereafter, until 29th February 2008 he was detained under immigration powers.[6]On 10th November 2006 a notice of the decision to make a deportation order was served on him. On 14th November 2006 he appealed against that decision, but on 7th December 2006 withdrew his appeal. By 19th January 2007 his appeal rights were exhausted. Miss Jegarajah, who appears for the claimant, does not submit that his detention was, during that period, arguably unlawful. He has accordingly been detained for some 13 and a half months since his appeal rights were exhausted.[7]On 16th February 2007 he was taken to the Iranian Embassy for an interview to permit a travel document to be issued. The fullest summary of what transpired at the Iranian Embassy is contained in an internal note prepared on the review of his detention in February 2007 by a Home Office official, T Hussein, dated 22nd February 2007. He noted that the Iranian Embassy advised the Home Office that they could not accept the claimant as an Iranian national because they required more information or documentary evidence like a birth certificate. Only after providing that could they issue him with a travel document. However, he does not have such evidence. His family, he claims, is no longer in Iran but somewhere in Turkey because they left Iran due to their Jewish origin. In the immigration factual summary, that comment is noted in these words:
"The Iranian Embassy also advise that they believe the applicant to be Jewish."
[8]On 22nd February 2007 Mr Hussein, in the file note subsequently to be sent to a senior officer, observed:
"I cannot see how we can remove him to Iran if the authorities in the Iranian Embassy cannot accept him as one of their nationals without evidence. I propose release from detention with restrictions. However, he will still not have any legal basis to remain in the United Kingdom."
His superior, Miss Edmondson, disagreed with his recommendation and on 23rd February 2007 stated that she was not minded to release him because the Home Office had told him to obtain further evidence of his nationality. She noted that he was desperate to return but, despite that, the unsatisfactory immigration history which I have summarised suggested that he should be detained meanwhile.[9]On 27th February 2007 he was advised in a monthly detention review to submit a copy of his birth certificate or passport so as to expedite the obtaining of travel documents. On 9th March 2007 his application for bail to an Immigration Judge was refused. The bail summary noted that he had not, up to that point, applied for documents from Iran and that whilst it was not possible to give an accurate estimate of when a travel document would be available, the matter had been put in his hands and the quicker he applied to the authorities in Iran the sooner the Home Office could apply for an emergency travel document from the Iranian Embassy.[10]On 20th April 2007 he was told that to obtain identification documents he should write to the Iranian authorities in Iran. It was asserted, and is repeated in the witness statement by Miss Honeyman, prepared for the purposes of another case, that Iranian citizens can apply for those documents from abroad and can be assisted by relatives in obtaining them.[11]He applied again for bail. Bail was refused on 9th May 2007.[12]Meanwhile, a complication entered into his case. Documents belonging to another person were found by Home Office officials on his file. A comparison with the known details of the claimant demonstrated that they were nothing to do with him, but for a time it was believed that he was seeking to persuade the Home Office that these documents did indeed relate to him. That belief, it is now accepted, was erroneous. On 14th August 2007, however, in a further bail hearing, it led the Immigration Judge to reject his application for bail on, amongst other grounds, the production of those false documents.[13]Meanwhile, acting on the advice of the Home Office, his solicitors, who appear to have been instructed first in May 2007, wrote three letters to the Iranian Embassy: on 22nd May 2007, 18th June 2007 and 14th September 2007. In them they sought the full address in Iran of the Department of Nationality, Registration and Statistics, the department which from which they understood documents capable of establishing Iranian identity could be obtained. The solicitors had not themselves been able to obtain the address of that department in Tehran. There is a minor dispute about whether or not that address was readily available. A document apparently published by that or a similar department in Tehran indicated that when documents such as identity certificates and birth certificates were requested from abroad "an indefinite waiting period should be expected before a reply is received". Those words were to be borne out by the subsequent history of this case. As far as can be told, the period up to now has not resulted in the production of any answer from that department, let alone any assistance with the obtaining of the documents.[14]In the meantime his detention was periodically reviewed by Home Office officials. It is a theme of their file notes that they disagreed. All of them noted the difficulty of obtaining documents from Iran, but whereas that caused Mr Hussein and later Miss Nicholls to conclude that there was no immediate prospect of obtaining the relevant documents and so facilitating his removal to Iran, other officials in the light of the immigration history I have recounted, and in the light in their view that it was possible that with the claimant's cooperation and intervention of his solicitors, travel documents might be obtained, decided that detention should be maintained.[15]On 27th July 2007, by way of example, Miss Nicholls noted that by then he had been detained for 10 months with "realistically no prospect of imminent removal in sight". She proposed that he be released. Her superior, however, the Deputy Director, Mr Hearn, on 30th July 2007, having noted that he showed some signs of cooperation with the process of obtaining the emergency travel documentation, said he had a history of deception so as to cause Mr Hearn to conclude that he could not believe that he would comply with release conditions. He proposed that the Home Office should not consider his release but another interview should be arranged urgently.[16]Mr Hearn appears to have been of the view, recorded in his file note of 20th August 2007, that when interviewed by immigration officers they should take, as he put it, a "strong line" with the claimant that they knew that he was not Iranian and that he should provide evidence of his true nationality.[17]Thereafter, as I have noted, there was a bail hearing on 14th August 2007 in which, for a variety of reasons, including the erroneous belief that he had produced false documents, bail was refused. Detention was then periodically reviewed. On 25th September, and again on 8th November, 27th December and 10th January 2008 bail was refused and continued detention authorised. By then, on 23rd October, judicial review proceedings had been initiated.[18]At a hearing on 26th November 2007 before Stanley Burnton J, it was stated on behalf of the Secretary of State by counsel who appears for her today, Mr Bourne, that the website address of the Iranian department dealing with identification documents was readily available. It was given to the claimant's advisors and they wrote successive letters on 29th November 2007, 17th December 2007 and 18th February 2008 to the relevant Ministry in Tehran. They sought, and were provided, on 10th December 2007, with copies of the fingerprints kept on the Home Office database for submission as a package to the Ministry.[19]The last review of detention before release occurred on 5th February 2008 when the decision to detain was maintained. No documents have been put before me to indicate why that decision was altered so as to produce the release of the claimant on 29th February 2008, but it can be inferred with reasonable confidence that by then, after the elapse of 13 and a half months once appeal rights had been exhausted and the lack of success of the claimant's advisors in obtaining documents or even a reply from the Iranian Ministry, that the Home Office officials concluded that it was no longer reasonable to expect that emergency travel documents could be obtained within the reasonably near future.[20]Against that factual background, Miss Jegarajah submits that the detention of the claimant became unlawful, either once the Iranian embassy made its view known that they did not consider the claimant to be an Iranian citizen or by a subsequent date, by which time some Home Office officials at least had begun to express an opinion that there was no realistic prospect of imminent removal to Tehran.[21]The law is not controversial. It is derived from a number of cases in the Court of Appeal and has been summarised by first instance judges in subsequent decisions. It is, as far as I am concerned, comprehensively and accurately stated by Wyn Williams J in R (on the application of Farzad Qaderi) v Secretary of State for the Home Department [2008] EWHC 1033, at paragraphs 24 to 28 inclusive.[22]It is not disputed that paragraph 2(1) of Schedule 3 to the Immigration Act 1971 confers a legal power to detain someone in the claimant's position nor that, pursuant to section 5(1) of the same Act and Rule 362 of the Immigration Rules, that a deportation order is an order requiring the claimant to leave.[23]Mr Bourne for the Secretary of State accepts that, notwithstanding the existence of that power and that obligation, detention can become unlawful in the circumstances summarised by Toulson LJ in R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at paragraph 45:
"There must be a sufficient prospect of the Home Secretary being able to achieve that purpose, ie, effecting removal or departure to warrant the detention or the continued detention of the individual, having regard to all the circumstances, including risk of absconding and the risk of danger to the public if he were at liberty."
[24]Miss Jegarajah submits that from a date very early in 2007 it was obvious that there was no such prospect of effecting the removal of the claimant, and that the history of the matter which I have recounted furthermore demonstrates inefficiency on the part of the Home Office such as to amount to a breach of its obligation to "exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within the necessary time" (per Woolf J in Hardial Singh [1984] 1 WLR 784).[25]Mr Bourne submits that at no stage until 29th February 2008 was it clear that there was no reasonable prospect of removing the claimant within a reasonable time, and furthermore, that the method chosen by the Home Office -- that of providing information to the claimant's advisor and, where necessary, as in the case of fingerprints, supporting information -- the Home Office discharged its duty to act with reasonable expedition and efficiency.[26]I have found this a finely balanced case. The immigration background of the claimant indicates a high risk of absconding or of dishonest evasion of the obligations which lie upon him of cooperating in his departure from this country. He does not, however, pose a serious risk to the public of criminal activity beyond deception, if necessary to permit him to remain here. Those officials who placed great weight upon that immigration history were, in my judgment, perfectly entitled to do so. It was a factor of considerable significance.[27]Secondly, the period of detention, 13 and a half months, is, by comparison with other cases decided in recent times, nowhere near the period the elapse of which by itself points to detention having become unlawful.[28]Thirdly, and the point of greater significance which emerges from the facts of this case, it was reasonable and a proper means of discharging their duties of expedition and diligence, for Home Office officials to place the principal burden of securing identification documents from the Iranian authorities on the claimant. Miss Honeyman's statement of 3rd October 2007 indicates a willingness on the part of the Iranian authorities to assist those who genuinely wish to return to Iran, and who have a proper claim to Iranian nationality, to do so. Unless and until that expression of willingness to assist is belied repeatedly by events, Home Office officials are, in my judgment, entitled to rely upon it. This case indicates that it may, in the future, be more difficult to rely on such expressions of willingness to cooperate because apart from the initial interview the Iranian authorities appear to have done nothing whatever to assist either the claimant or the Home Office to establish his identity. That does not mean that in this case it was not reasonable for the Home Office to adopt the course that they did. In my judgment, it was reasonable.[29]A feature peculiar to this case, which has undoubtedly prolonged the claimant's detention, was the finding on his file of documents which did not relate to him and the unjustified suspicion that he had caused them to be placed there. Mishaps of that kind will occur even in the best regulated office and, by itself, a mistake of that kind would not make what would otherwise be a reasonable decision or period of detention unreasonable or unlawful. On the facts, it does not cause a period of detention, on the face of it lawful, to become unlawful.[30]What the history shows is that Home Office officials were confronted with a by no means unusual but nonetheless difficult case: a claimant with an immigration history which indicated that he would, by deception, avoid his obligation to depart this country, but who was nonetheless willing to return to the country which he claimed as his own. The period during which steps were taken to permit his return, 13 and a half months, is a long one. It approaches, but does not exceed, the period during which it is reasonable to continue to make those attempts. In my judgment, the Home Office, by releasing the claimant on 29th February 2008, avoided the detention of the claimant becoming unlawful by the elapse of an excessive period of time. Accordingly, and for the reasons which I have given, I reject this claim.[31]MR BOURNE: My Lord, I am grateful. There is one matter which I may need to clarify. May I just have a moment to take instructions?

MR JUSTICE MITTING: Certainly.

[33]MISS JEGARAJAH: My Lord, I am sorry, can I say that I would like to ask for permission for leave to appeal your judgment on the basis that, whilst I completely accept that the law is in place, it is an area in which quite a few cases are going to the Court of Appeal. What is important in your case is the question of duty and where duties lie, and to what extent ought the Secretary of State, in exercising due diligence, assist returnees and to what extent they ought to assist in the documentation process. That raises important issues about duties of fairness as against a claimant who is a detainee.[34]For those reasons, although I accept the cases are well-established, leave should be given to deal with this issue which has not been explored in other cases as in this.[35]MR JUSTICE MITTING: Very moderately put, but because I do believe that these cases, once the principles are established, do turn on their own facts and I believe this is one which turns on its own facts, you will have to persuade the Court of Appeal that you have a viable ground of appeal, not me.[36]MR BOURNE: My Lord, thank you for your patience. There is one matter which does need to be clarified. Towards the beginning of the judgment your Lordship said:
"No documents have been put before me to indicate why that decision was altered so as to produce the release of the claimant on 29th February 2008, but it can be inferred with reasonable confidence that by then, after the lapse of 13 and a half months once appeal rights had been exhausted and the lack of success of the claimant's advisors in obtaining documents or even a reply from the Iranian Ministry, that the Home Office officials concluded that it was no longer reasonable to expect that emergency travel documents could be obtained within the reasonably near future."

MR JUSTICE MITTING: Yes.

[38]MR BOURNE: It will not surprise your Lordship to know that my instructing solicitors and I have sought instructions as to what the court can be told about that decision on 29th February. We have no instructions that it was as your Lordship speculated in that sentence. We are somewhat uncomfortable if your Lordship's decision in the end rests in whole or in part on that inference being drawn. In other words, I would invite your Lordship not to draw that inference and consider for a moment whether that in any way alters the decision that you have reached.[39]MR JUSTICE MITTING: You are not telling me that it is put into a hat and a lottery ticket is drawn out. There has to be a decision-making process.[40]MR BOURNE: There is indeed. What complicates it is that detention policy generally is continually under review and evolves from time to time. Certain categories of detainees are released in accordance with certain safeguards such as reporting requirements or electronic tagging when it is considered that that can safely and properly be done. That is a slightly separate consideration from the one we are focussing on in this case of: is it possible to effect deportation within a reasonable time. From the enquiries that have been made, as I say, there is no evidence to suggest that a decision on 29th February was motivated by a decision, namely, that we cannot effect deportation within a reasonable time. Rather, my understanding is that Mr Ashori qualified for release under terms on which he was released on that date. I would be uncomfortable leaving your Lordship with the impression that there was a specific reasoned decision made under: the time has now come. That, my Lord, is why I raise it.[41]MR JUSTICE MITTING: Are you submitting that he is detained for a particular period upon the lapse of which the policy dictates he should be released?[42]MR BOURNE: My instructions are not that his release was referrable to the length of detention.[43]MR JUSTICE MITTING: You are speculating that, as you say I was. I was, I thought, complimenting the Home Office on their decision-making process, but if you tell me it was for other reasons I am disturbed that I have not been told that before and would be interested to know what they were.[44]MR BOURNE: If your Lordship requires to know more detail about that, I will immediately endeavour to take instructions on it. The reason why I am on my feet is simply that whilst I recognise that your Lordship's inference is one it would be reasonable to draw from the evidence, I have discomfort about it. Upon seeking instructions as to whether that was indeed what had happened, what I understand is that there is no evidence of that being the reason for the release, but rather a decision which I believe has also applied to many other detainees that release of this man was possible under certain conditions and therefore the decision was taken to release him according to policy as it stood on 29th February.

MR JUSTICE MITTING: What led to his release then rather than at some other point?

[46]MR BOURNE: As I understand it -- I will be corrected if I am wrong -- the introduction of policy on or before that date which made it possible.

MR JUSTICE MITTING: You mean there is a new policy?

[48]MR BOURNE: I am sorry. Can I take instructions? (Pause)[49]My instructions are that starting in November 2007 there was a change in policy. From its introduction in November it was applied to detainees on a rolling basis when their cases were reviewed. When Mr Ashori's case was looked at at the end of February, the view was taken that he qualified for release under that policy.

MR JUSTICE MITTING: Published policy?

[51]MR BOURNE: No, my Lord.[52]MR JUSTICE MITTING: I am rather disturbed to hear this. If there is an unpublished policy dealing with those in immigration detention which affects the timing of their release then it should be put into the public domain.[53]MR BOURNE: I am not sure what I can say to that, my Lord. There is nothing I can say that would immediately dispel the concern that your Lordship expresses about there being an unpublished policy.[54]MISS JEGARAJAH: My Lord, at this point I would like to apply for the court to reconvene the hearing and reconsider the judgment. I appeared in the Article 5 case on detention and one of the points that the Master of the Rolls made was that if detention is not in compliance with published policy then that is a clearly relevant consideration. If my client was entitled to be released at an earlier date under the policy my learned friend referred to, it would have changed radically the way in which we argued the case and we are very concerned. I am very puzzled by the way in which the issues are arising at this late date. We work on the basis that the Home Office gives us all the evidence that we need and that they justify their detention to the required standard. We work on the basis that that is what they do. If that is not what happened in this case then I would ask for the judgment to be reconsidered so that we can maybe consider the case again in the light of what is being said. It is quite clear from your Lordship's judgment that what your Lordship considers to be a reasonable date for release may not in fact be correct.[55]MR JUSTICE MITTING: Mr Bourne, what you have said could have been said during the course of the hearing.[56]MR BOURNE: My Lord, when your Lordship asked the question this morning -- in fact I think while my learned friend was making submissions about the change of decision -- that was when my instructing solicitor left the courtroom to take instructions. What I am now telling the court is what came back to us as a result of telephone calls that were made then.[57]MR JUSTICE MITTING: Well, I am prepared to accept that it is simply unfortunate, but it is unfortunate that I have not been told a matter that is plainly material to the latter period of his detention. I have accordingly decided the legality of what occurred from whatever date in November the policy was decided upon until 29th February in the light, at least, of incomplete information. I am disturbed that that has occurred. I think the way forward, subject to my being functus officio, is indeed for me to leave open detention after the date when the policy came into force and redetermine it in the light of further evidence and submissions.[58]MR BOURNE: My Lord, yes. May I then take instructions?

MR JUSTICE MITTING: Yes. (Pause)

[60]MR BOURNE: On behalf of the Home Office I certainly do not seek to persuade your Lordship you are functus officio, nor in the circumstances do I oppose any application to investigate that latter period further on the basis of your Lordship so directing.[61]MR JUSTICE MITTING: That is a very proper attitude. Miss Jegarajah, I think I should do this. I think I should investigate this matter further in the light of further evidence and submissions from the Home Office.[62]MISS JEGARAJAH: I am grateful for that opportunity, my Lord.[63]MR JUSTICE MITTING: I will direct for present purposes that no order is drawn up consequent upon my judgment and I direct that, in whatever timetable we can agree, further evidence about the undeclared policy and its application to this claimant is put before the court for me to rule on.[64]MISS JEGARAJAH: My Lord, can I just add to that, if there are any notes concerning the review, in particular in relation to what led to the release that of course would assist the court as well.[65]MR JUSTICE MITTING: Certainly. The fog is beginning to lift a little. If there is a policy of which you and I are unaware then its application may have been automatic.[66]MISS JEGARAJAH: Perhaps in the light of what has happened, which is unfortunate and inconvenient to the court, the court may be assisted by affidavit evidence from the defendant.[67]MR JUSTICE MITTING: I was going to discuss in a moment how the evidence is put before the court. You are both agreed on the course which I would feel comfortable with, namely adjourning final consideration of this matter until I have received evidence about the policy and its application is put before the court. You both agree with that?[68]MISS JEGARAJAH: Yes.[69]MR BOURNE: My Lord, yes, indeed. All I would ask is a somewhat extended period of time to file that evidence, because whilst stating what the policy is may be straightforward -- although I should stress I know nothing about it -- in terms of the timing of the application of it, and perhaps most importantly the question of it being unpublished, from my previous experience of working in government departments, in order to do that job properly I anticipate it will take some time. Whilst I am sure it will prove frustrating to the claimant, I would ask the court to give us two months.[70]MR JUSTICE MITTING: He is not actually any longer in detention and this is now all about money in principle, so accordingly there is not the same degree of urgency as there would be in a case where he were in detention or in imminent prospect of removal.[71]MISS JEGARAJAH: I am sorry, I just wanted to say in that regard that, whilst it may not be an issue now, at the time of his detention it would have been quite important to know if he could have benefited from a policy while he was being detained perhaps for different reasons than everyone that thought. Further, in relation to Article 5, people who are detained should have clear access to the reasons for their detention. It is one of the procedural safeguards in terms of liberty. It is really not good enough for the defendant to say "I am making reference to some unpublished policy and we are going to need two months". This should always have been available.[72]MR JUSTICE MITTING: You are going not into timing but into the overall merits. The timing may matter in other cases. It may be in everybody's interests, including the Home Office, that they deal with this matter as quickly as they can because, not to be over-dramatic about it, but potentially there is a grenade lurking in the machinery which might blow up with consequences for other cases. Mr Bourne, why do you need two months?[73]MR BOURNE: That is the best, most honest estimate which my instructing solicitor and I can jointly give of the time that would give the best chance of getting full instructions on all the questions that need to be answered to resolve this issue. If I was confident it could be done in less, I would ask for less. I appreciate it is a relatively long time. If it were a matter of just going into a file and getting someone to verify what had happened and stating what had happened, I would probably ask for four weeks to comply with that sort of thing. Whereas here you have not only things unrolling about policy also but also a second layer about the non-publication of the policy and what, if anything, can be said about that. My expectation is that it will take time to deal with that properly. I suspect in the end that neither the claimant nor the court would be much assisted by an explanation which proved to be incomplete because it had to be put before the court with haste. That is why I ask for that period.[74]MISS JEGARAJAH: My Lord, if I could say one thing very briefly. I appreciate my learned friend raising this at the end of the judgment, but really it should have been made before your Lordship gave judgment in this case so there was delay just in terms of that. An adjournment was sought the day before yesterday on the basis of a case that deals with settled law. A very large bundle was submitted. There was a previous adjournment of the last judicial review because the Home Office had not been ready to deal with the case, so there has been tremendous delay in this case not because of us. Two months in those circumstances is just too long. If it is a short time it can focus the Home Office's mind to do something expeditiously which is exactly the point in this case.[75]MR JUSTICE MITTING: Mr Bourne, do you understand this to be a matter that requires ministerial decision or is it something that could be dealt with at an official level?[76]MR BOURNE: Can I take instructions on that question? (Pause) We do not know, my Lord. If it is an official level it would be the highest official level.[77]MR JUSTICE MITTING: Yes. My reason for reluctance to accept your suggestion that you have two months in which to produce the information does not arise out of my concern for this case -- where frankly it does not matter whether it is two months or one month or whatever period -- but for other cases. It has become apparent in the last six months to a year that there are a number of these long term immigration detention cases coming before the courts and it is bound, I would have thought, to arise, now that the matter is in the public domain: what is the Home Office's policy. It is difficult to see how these cases can be properly determined unless the courts are told what the policy is. Consequently, I am going to ask that you take instructions this afternoon on a shorter time period. I do not want to impose something that is pointlessly short and will not result in a proper answer. But two months is too long.[78]MR BOURNE: My Lord, by all means. Does your Lordship propose to rise for a short time?[79]MR JUSTICE MITTING: Yes. What time would you like me to come back?[80]MR BOURNE: Five or ten minutes, my Lord.

MR JUSTICE MITTING: Very well. (A short break)

[82]MR BOURNE: My Lord, I am grateful for that opportunity. My instructions are to seek as much time as the court feels able to give us. Your Lordship was quite right to say that this does impact on other cases, that plainly it is of wider relevance. Clearly if one just focussed on the matter of Mr Ashori it might -- and I stress might -- be simple to ask somebody what policy was in existence, who knew about it and how was it applied on what date, and that might suffice for Mr Ashori. But given a development in policy of this kind must have wider implications for a great many detainees, it is obviously of the greatest importance that whatever so issues from the Home Office about it be fully correct and fully considered. That is what I am told will inevitably take time and will go up, as I have said, to the highest level. The wider implications are, looked at one way, a reason to get on with it and I can assure your Lordship there will be no dragging of feet by anyone involved. But I submit when one takes a step back and thinks about it, it is actually a reason not to hurry because I anticipate -- without as I have said, knowing much of anything about it -- that the answers to these questions may be complex and they obviously have to be explored properly.[83]I asked for two months. Your Lordship has indicated that the answer to that is no. Without wishing to displease the court, I repeat the request. If I cannot have the eight weeks, as fall back I would ask your Lordship for six rather than four. Perhaps my safety net submission would be that I do not believe it can be done in less than four.[84]MR JUSTICE MITTING: Well, 4th July is six weeks tomorrow. That will permit, if you file your evidence by then, this restored case to be determined before the end of term. I am determined that it should be determined before the end of term.[85]MR BOURNE: My Lord, so be it.[86]MR JUSTICE MITTING: I am going to order you to lodge evidence concerning the undeclared policy to Mr Ashori by 4 pm on Friday 4th July with a view to this reassumed hearing being listed before me (I cannot get rid of it to anybody else) before the last day of term.[87]MR BOURNE: I am very grateful.

MR JUSTICE MITTING: Miss Jegarajah, any further directions needed?

[89]MISS JEGARAJAH: Yes. One of the things that I think your Lordship picked up on was the fact that detailed reviews stop at a particular time. I think the last most detailed one was August 2007.

MR JUSTICE MITTING: Yes, 16th August.

[91]MISS JEGARAJAH: There have been quite a lot of really helpful notes with full examination, which your Lordship indicated was quite fair, and then we have this complete absence of that and pro forma jobs. In the light of what has been said I am wondering just to confirm there are no such further monthly reviews. If there are, that would certainly shed light on the way in which the policy has been applied.[92]MR JUSTICE MITTING: Add to the documents to be produced by that time any further documents relating to the case of Mr Ashori.[93]MR BOURNE: Yes, my Lord.[94]MR JUSTICE MITTING: For the avoidance of doubt, I make it clear now that the view that I have reached and expressed in my oral judgment about the lawfulness of detention from the period when the policy was first decided upon remains open. Any other directions required?[95]MISS JEGARAJAH: No, thank you.[96]MR BOURNE: No, thank you.

Cited in 4 later judgments