Lumba, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2090 (Admin)

Case No CO/922/2007[2008] EWHC 2090 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 4th July 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF WALUMBA LUMBAClaimantv
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)
Alex Goodman (instructed by Fisher Meredith LLP) appeared for ClaimantRory Dunlop (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: The claimant in this case is a national of the Democratic Republic of the Congo ("the DRC"). He entered the United Kingdom unlawfully in April 1994 and claimed asylum. It was not until February 2000 that the Secretary of State refused his asylum claim. However, he was granted exceptional leave to remain until 20th February 2004. Then on 13th April 2004 he was granted indefinite leave to remain. In the meantime, he committed a number of offences, mainly of violence, which led to prison sentences of varying lengths.[2]Finally, in May 2003, he committed a very serious assault, striking a man, who had objected to him urinating in the garden of a house, with a brick, and causing what could have been, but fortunately were not, life-threatening injuries. However, they were serious enough to convict him of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. That conviction took place in January 2004 and led to a sentence of 4 years imprisonment. His release date, subject to any chance of parole, was 23rd June 2006, which would be after he had served two-thirds of the 4-year sentence.[3]A probation officer's report to the Parole Board showed that he was minimising his responsibility. He had suggested that he had acted in self-defence and he had not pleaded guilty to the offence. He recognised that he had difficulties in controlling his temper, there were mental health problems, which were being controlled by medication, and it was assessed then that there was a medium risk of his reoffending and causing harm. A psychiatric report diagnosed post-traumatic stress disorder, overlapped by depression and paranoid psychotic episodes. This was said to have been because he had witnessed the violent death of his father, and had himself been detained and tortured in the DRC. That was his background.[4]On 17th May 2006 he was served with the intention to make a deportation order. This followed a decision letter of 3rd April 2006, which told him that it had been concluded that, following his conviction for wounding with intent, his deportation would be conducive to the public good, and then set out his background, which I have already indicated. It concluded that he would be able to access adequate mental healthcare facilities on his return and, although he had been resident in the United Kingdom for a number of years, he had spent his youth and formative years in the DRC and it was not considered unreasonable to expect him to be able to readjust to life in the DRC.[5]The letter continued:
"We are also aware that you have a wife and child in the United Kingdom. In considering whether it would be right to deport you the effect that deportation is likely to have upon them, your family and the wider community has been taken into account, as well as whether any disruption to your family and private life is justified in light of your criminal convictions."
The conclusion was that, on balancing his rights to a family life and the legitimate aim to ensure the prevention of disorder or crime, his deportation would not be a breach of Article 8.[6]In those circumstances, he was told that there was a right of appeal against that decision. He had to be released from custody on 23rd June 2006. On 22nd June 2006 he was given a letter from the Home Office which, so far as material, stated as follows:
"As you are aware, on 17 May 2006 you were served with a notice of intention to make a deportation order. As the subject of deportation action you are liable to detention under Schedule 3 to the Immigration Act 1971 (as amended). However, detention is only used where there is no reasonable alternative available and there is reason to believe that you would not comply with any restrictions attached to your release. Having considered the particulars of your case, your detention is deemed to be justified under the powers contained in Schedule 3 of the Immigration Act 1971. It has been decided that you should be detained because: There is insufficient reliable information to decide whether to grant you temporary admission or release. The decision to detain you has been reached on the basis of the following factors: You have propensity to behave violently and on the commission of your last offence you failed to show any remorse. It is considered that maintaining your detention is in the interests of public protection. Your removal is deemed likely to be effected within a reasonable time scale and therefore that you should be detained with a view to effecting your deportation. In reaching this decision Articles 5 and 8 of the European Convention on Human Rights have been taken into account."
[7]It was then asserted in relation to Article 5 that all reasonable expedition was being exercised to ensure that the necessary steps were taken for his deportation within a reasonable time. It was considered that his removal remained a realistic prospect within a reasonable period.[8]Then there was reference to Article 8. It was asserted that the detention was not in breach because it was proportionate within the terms of Article 8.2. It will be noted, as I have indicated in citing it, that in that letter it was stated that detention was being used because there was no reasonable alternative available. That is to say, the approach was that detention was in effect a matter of last resort. In due course I will come to theproblems which subsequent evidence has created in relation to that.[9]He remains in custody. By this claim he seeks a declaration that that custody is now unlawful, and has (before now) been unlawful. In addition, he seeks an order for his immediate release and he claims damages.[10]The appeal against the decision to make a deportation order was heard on 5th December 2006, and was dismissed by a decision promulgated on 15th December 2006. Because, albeit his asylum claim had been rejected, he had been granted exceptional leave to remain, followed by indefinite leave to remain, there had been no appeal against the refusal of asylum. So the appeal against the decision to make a deportation order was the first opportunity that he had to raise issues of asylum, should he wish to do so; and he did because, he asserted, his return would be contrary to the Refugee Convention and Article 3 of the European Convention on Human Rights, because he would be persecuted and suffer relevant ill-treatment on his return to the DRC.[11]At the appeal he was represented by counsel. In his statement, which was produced in his appeal, he said this:
"24. I plea to the Secretary of State to accord me with the protection of the 1951 United Nations Convention relating to the test of refugees. I am an asylum seeker... I cannot return to the country from which I fled persecution... I will not be protected by the Congolese authorities should I be returned there, I fear that I would be killed, in the same manner in which my father was killed."
He then said that he had learnt his lesson and would not further offend.[12]Putting it very briefly, his account of what had led to him leaving the DRC was the killing of his father by soldiers, his father having been a founding member of the Union Democratic Progress Social Political Party in the DRC. He said that he demonstrated in order to find out what had happened to his father. That led to his being detained and seriously beaten by soldiers. He was kept in detention for some 11 days. He said he was eventually released but was still wanted by the authorities and, because his life was in danger, his mother arranged for him to leave the DRC and travel to the United Kingdom.[13]In his determination, the Immigration

Judge said this:

"5. The Appellant has previously applied for asylum, which had been refused. It was no part of the Appellant's case that his removal involved the United Kingdom in a breach of its obligations under the 1951 Refugee Convention and there was no suggestion that his removal would expose him to a risk of unlawful killing or of inhuman or degrading treatment or punishment in the DRC."
[14]On the face of it, that observation conflicts with the statement produced by the claimant, to which I have already referred. Indeed, in paragraph 6 of his determination the Immigration Judge, in summarising the appellant's evidence, said that he confirmed the witness statement, and that it would not be safefor him and his family to return to the Congo, as there would not be adequate protection for them. It is said that there is thus an obvious internal inconsistency in the Immigration Judge's decision.[15]On the face of it, one sees the force of that submission, but the reality is that he was represented by counsel. We do not know what, in the end, his evidence amounted to, because he may well have backtracked in cross-examination. It may be that in the end it was not asserted that he would be at risk of persecution or ill-treatment on return. Furthermore, it is to be noted that there was no appeal sought. If his case had remained the same, that inconsistency, on the face of the Immigration Judge's decision, would, one would have thought, have provided strong grounds for a reconsideration of the decision. But there was no appeal.[16]It seems to me, therefore, that it is not possible for Mr Goodman now to rely on that as a basis for saying that removal is not likely to occur. Indeed, it is right to note that he has made a subsequent claim for asylum, but that claim is based solely upon the contention that an involuntary return to the DRC is itself liable to lead to persecution because of the attitude of the DRC authorities to those who have sought asylum abroad and failed. It is said to have been considered to be a slander on the state and an indication of opposition, and therefore deserving of (and receiving) ill-treatment on return.[17]As the letter of 17th May 2006 indicated, the power to detain is contained in Schedule 3 to the Immigration Act 1971 (as amended). I do not need to cite it specifically. It permits detention, pending a decision on removal or, a decision having been made, removal itself. That includes deportation.[18]The Secretary of State has a published policy on the use of detention. It was produced in a witness statement by one Hannah Honeyman, who is a senior executive officer in the Criminal Casework Directorate of the UK Border Agency. That statement is dated 1st April 2008.[19]The history, perhaps somewhat in parenthesis, is that this claim was lodged on 18th October 2007. By an order of that day, Foskett J directed that the time for acknowledgement of service be abridged to 2 days from the service of claim, and that the defendant should file a statementsetting out whether, if permission was granted, an application for bail would be opposed and, if so, on what grounds.[20]The matter came before Wyn Williams J and he refused permission on the papers on 24th October 2007. There was a refused on 31st October 2007 of an application for an expedited renewal hearing.[21]On 2nd April 2008 the matter was adjourned and finally it came before me on 18th April 2008, when it was adjourned, pending the outcome of the decision of the Court of Appeal in the case of BK. I will explain the significance of that shortly.[22]On 14th May 2008 I considered an application for bail. I refused it, but made some directions about the service of evidence, in effect saying that any additional evidence from the defendant was to be served within 14 days, the claimant 7 days thereafter, and that the application for permission be listed for a rolled-up hearing on the first available date within 28 days or so of that. It came before me on 24th June 2008. That is the procedural history of this claim.[23]Going back to the statement of Hannah Honeyman, in it shepurported to deal with the defendant's detention policy. What she said about it was this, in paragraphs 3-5:
"3. The Defendant's powers to detain those subject to deportation action are set out in Schedule 3 to the Immigration Act 1971. The Defendant's current policy with regard to the exercise of those powers was published in two White Papers — 'Fairer, Faster, Firmer — A Modern Approach to Immigration and Asylum' 1998 and 'Secure Borders, Safe Haven' 2002. 4. That policy is reflected in guidance issued to staff. That guidance is set out in Chapter 55 of the Operational Enforcement Manual (OEM) (previously Chapter 38). It explains that, whilst there is a presumption in favour of release, detention may be justified if there are strong grounds for believing that a person will not comply with any conditions of release (eg. reporting requirements)... 5. That guidance has recently been supplemented by an internal process communication to staff dated 25 March 2008. This communication sets out criteria (known as the 'Cullen criteria') which seek to identify those individuals who might be suitable for release even though they would otherwise be detained under existing policy. However, the Cullen criteria do not apply to individuals who have been convicted of violent, sexual or drug offences..."
Thus, what Ms Honeyman is saying is that the general policy is as set out in chapter 55 of the OEM, namely that there is a presumption in favour of release and detention may be justified if there are strong grounds for believing that a person would not comply with conditions of release.[24]So far as the internal communications in March 2008 are concerned, that is the Cullen criteria, they merely go to whether, in particular cases, there should be release, even though they would otherwise be able to be detained under the existing policy. That is relating or referring to the possibility of release, perhaps on terms or conditions, which could involve any such conditions as would be applicable on a grant of bail. No doubt they would include, for example, tagging, curfew or reporting restrictions, or any one or more of those sorts of conditions. But there was no suggestion in that statement that the Cullen criteria, or any policy adopted which had not been specifically announced, was that there should be presumption in favour of detention at all material times in relation to certain categories of foreign prisoners, including in particular those such as the claimant, who had been convicted of serious offences of violence.[25]The guidance set out in the OEM was annexed to Ms Honeyman's statement. This referred specifically to Article 5, and continued:
"To comply with Article 5 and domestic case law, the following should be borne in mind: A) The relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation). Detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with Article 5 and would be unlawful in domestic law; B) The detention may only continue for a period that is reasonable in all the circumstances; C) If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised; and D) The detaining authority (be it the immigration officer or the Secretary of State), should act with reasonable diligence and expedition to effect removal (or whatever the purpose of the power in question is)."
[26]So far as the person subject to deportation action is concerned, it is said that detention in those circumstances must be authorised at senior case worker level in the criminal case work team, and detention could only lawfully be exercised under those provisions where there was a realistic prospect of removal within a reasonable period.[27]There are then set out in paragraph 55.5 the factors influencing a decision to detain:
"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. Each case must be considered on its individual merits. The following factors must be taken into account when considering the need for initial or continued detention."
For detention there are set out seven specific points:
"• what is the likelihood of the person being removed and, if so, after what timescale? • is there any evidence of previous absconding? • is there any evidence of a previous failure to comply with conditions of temporary release or bail? • has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry) • is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave, etc) • what are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment? • what are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?"
Against detention there are set out three points:
"• is the subject under 18?; • has the subject a history of torture?; • has the subject a history of physical or mental ill health?"
[28]At 55.8, under the heading "Authority to detain persons subject to deportation action", this is said:
"The decision as to whether a person subject to deportation action should be detained under Immigration Act powers is taken at senior case-worker level in CCT. Where an offender, who has been recommended for deportation by a Court or who has been sentenced to in excess of 12 months imprisonment, is serving a period of imprisonment which is due to be completed, the decision on whether he should be detained under Immigration Act powers (on completion of his custodial sentence) pending deportation must be made at senior case-worker level in CCT in advance of the case being transferred to CCT. It should be noted that there is no concept of dual detention in deportation cases..."
[29]The individual detained has to be served with a form, which is known as an IS91R, which sets out reasons for detention. This must specify the power under which a person has been detained, the reasons for detention and the basis upon which the decision to detain was made. There are various matters that are set out in that form, both as reasons for detention and the factors forming the basis of the reasons. The form in question repeats the point that detention is only used in cases where it is decided that it is really necessary.[30]Finally, there is consideration of where detention should occur. Normally it would be in a detention or immigration removal centre, but those detainees who have completed prison sentences of 4 years or more or have been involved in the importation of Class A drugs or have committed serious offences involving violence or committed a serious sexual offence may be detained in prison.[31]Ms Honeyman also produced the Cullen documentation, which she said related to consideration of circumstances for release. In what she produced one can find the following:
"2.1 Cases which should not be considered for ending detention Anyone convicted of a[n offence] which appears in the list attached should not be considered for release under these instructions. This list includes all violent offences, all sexual offences and all drug offences bar minor possession."
Then it said, paragraph 3:
"Where a case does not fall within the list...Case Owners should consider first whether or not removal is imminent... If... imminent then consideration for release... should stop. If... not imminent, then... If the Case Owner feels that the subject has an above average risk of absconding... the case should go no further..."
[32]Then there is the question of risk to the public, which is a consideration. Questions ofelectronic monitoring or tagging should be considered, and there should be, even if there is release, the continuation of an active pressing for removal of those who are to be deported. It says that only cases where removal is not imminent will be suitable for Operation Cullen, that no doubt reflecting the approach that if removal is imminent then detention will prima facie be justified.[33]I do not think I need read more. There are further instructions as to the way in which the question of possible release should be approached.[34]There is also, as the policy has indicated, the need for regular reviews of detention. The initial detention was in June 2006. There is no record of any reviews until February 2007. As I understand it, it certainly was the policy at the time that there should be monthly reviews of detention. However, in my judgment the absence of such reviews is not necessarily material to whether the detention is now lawful or unlawful.[35]The principle that applies was originally set out in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, a decision of Woolf J (as he then was). In that decision the learned

judge said this:

"7. Although the power which is given to the Secretary of State in paragraph 2 [of the third schedule to the 1971 Act] to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It canno[t] be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being 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. What is more, 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 seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. 8. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."
That is the approach which, since Hardial Singh, has been regarded as correct and applicable to all these cases. In fact, in Hardial Singh's case he was due to be released in July 1983; he had a right of appeal, which expired in March; he was served with a deportation order on 16th June 1983; and since 20th July 1983 he had been detained under the power contained in the Immigration Act. The case came before Woolf J on 13th December 1983. So he had by then been detained for a little under 5 months. The learned judge, at counsel for the Secretary of State's request, agreed to an adjournment for a period of 7 days on the basis that it was possible that there might be further information in relation to whether the Indian High Commission would be able to indicate that the removal would take place very shortly. History does not record what happened after that 7-day period. As far as I am aware, the matter did not come back to the court. I say that because, as it happens, I was counsel for the Secretary of State in that case.[36]The Hardial Singh approach has been adopted since then. It is convenient to refer to observations of Dyson LJ in the case of R (I) v Secretary of State for the Home Department [2003] INLR 196. At paragraphs 46-48 in that case Dyson LJ said this:
"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh... This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97, 111A-D... In my judgment, Mr Robb correctly submitted that the following four principles emerge: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences. 49. Simon Brown LJ has identified the three main points of principle which were in issue in the present appeal, namely the risk of absconding and reoffending, the appellant's refusal to accept voluntary repatriation, and the asylum claim and appeal. As I have already stated, the risk of absconding and offending or reoffending is relevant to the reasonableness of the length of a detention pending deportation. It is, as Simon Brown LJ says 'an obviously relevant circumstance'... 50. As regards the significance of the appellant's refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight. Mr Robb submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention. It is this second feature whichhas weighed heavily with Mummery LJ. 51. I cannot accept that the first ofMr Robb's reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable. If Mr Robb were right, the refusal of an offer of voluntaryrepatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation."
[37]I shall come back to that in due course because in this case one of the grounds for saying that the detention remains reasonable is the fact that the claimant could, but is refusing to, return voluntarily.[38]In the case of I, he had been detained from the beginning of February 2001 until the end of May 2002. So it was for a period of something like 15 months. It was decided by the Court of Appeal that any further detention would not be reasonable.[39]There is one other matter which is of materiality. That is that it has been decided that a period spent in detention whilst an appeal is being pursued, certainly if that appeal is one which is not likely to have succeeded and does not succeed, should not count in respect of the period of detention.[40]So far as the history of the claimant's actions in this case are concerned, I shall deal with them as briefly as possible. I have already indicated that the appeal he made against the decision to deport him was promulgated on 15th December 2006. He did not appeal, and thus his appeal rights were exhausted by 27th December 2006. On 1st March 2007 there was a further attempt by the defendant to conduct what is described as an ETD interview, that is to say an interview so that he could obtain a travel document from the DRC to enable him to return there. The DRC had to be satisfied that he was indeed a subject of that country.[41]A note of the interview records that he stated that his passport had been missing since he moved house some time ago and his wife did not know where it was. He was asked whether he was willing to complete an ETD application but he refused on the grounds that he did not wish to be returned to his country. He said that he realised that he had a deportation order pending against him but he was not willing to be removed and would not assist with the documentation process. In fact, the deportation order was signed on 14th March 2007 and on 20th March 2007 the part of the Home Officeknown as Dover Removals indicated to the case worker in charge that there was actually a copy of the claimant's passport on file. So they had, if they had produced the necessary information between the departments, the means of showing the DRC Embassy that he was a national of that country. Accordingly, at the end of March the defendant applied for an ETD, providing the necessary documentation. It seems that this was lost by the DRC Embassy. So the application was resubmitted on 26th April 2007. The Embassy was chased at the end of June, and on 25th July 2007 an ETD was granted. Thereupon, the defendant set directions for the claimant's removal on 20th August 2007 and served notice of these arrangements on the claimant.[42]On 2nd August 2007 a director in the Criminal Casework Division signed off on a proposal dated 28th July 2007 that he had been detained because he would abscond if he were released. That is in the form of a detention review which, having recorded the history, being in the form of the various detention reviews that have been produced in relation to this, indicated that he was immediately removable and it was considered that he would abscond if released from detention. The fear that he would abscond was a persistent reason given on the reviews of detention as to why he should continue to be detained.[43]On 15th August 2007 the claimant submitted what amounted to a fresh claim that he would be at risk if returned because he was a failed asylum seeker. He relied upon the evidence that was eventually considered in a country guidance case by the Asylum & Immigration Tribunal, the case being known as BK (Failed asylum seekers) DRC CG [2007] UKAIT 00098. These further representations were refused by a letter of 16th August 2007, and on the following day the claimant lodged a judicial review of that refusal. As it happened, that came before me on the basis of an interim order being sought on 17th August 2007 and I refused permission.[44]A week later I changed my mind, not specifically in this case, but in a number of cases referred to under the heading R (Lutete) v Secretary of State for the Home Department [2007] EWHC 2331 (Admin). I decided that failed asylum seekers should not be returned to the DRC untiljudgment had been given in the BK case. What I said, so far as material, was this:
"14... the Secretary of State ought not for the time being to remove failed asylum-seekers to the DRC. So far as I can see the situation in relation to that is little different from thatwhich relates to Zimbabwe to which no returns are being made until the AIT reaches a conclusion in a [country] guidance case... 15. Accordingly, I amprepared to make an order that in all these cases the return should not take place. Let me make it clear what the limitations on that are. First of all, this only relates to failed asylum-seekers. I gather from Ms Busch [who appeared for the Secretary of State in that case] that there are some who do not fall into that category who are straightforward, if I [may] put it that way, deportees for whatever reason... Secondly,what I have said in no way indicates that there will be in the end a bar on removal... Within a reasonable time, I would imagine by October, the decision will be known and the Secretary of State will be able to decide whether removals are indeed possible, and if they are, what category of persons should still be protected from any removal."
[45]As a result of that, there was a stay agreed on the removal of the claimant, but he continued to be detained on the basis that there was a real risk that he would abscond if released. That led to the institution of this claim in the middle of October 2007.[46]On 18th December 2007 the AIT gave judgment in BK, and decided that failed asylum seekers were not, as such, at risk. What happened was that the evidence, which was shown to me when I decided Lutete, and upon which it was said that the risk was established, did not, when the witnesses gave evidence, persuade the tribunal that indeed such a risk existed. The witnesses did not come up to proof. Again detention was maintained on the basis that there was a real risk of absconding, and also that he did not meet the Cullen requirements, so far as release was concerned.[47]On 23rd January 2008 an application for bail was rejected, the immigration judge noting that the claimant had shown a blatant disregard for some aspects of English law and that a further period of detention was not too onerous, as he put it, in the light of the difficulties, which had been of the claimant's own making. One of the problems, too, was that the place where he was to staywas with someone who apparently had something of an alcohol problem and there was a fear that the claimant would also be affected by that.[48]A further application for bail was made 2 days later, and was refused on 4th February 2008, the Immigration Judge saying that he was satisfied that he had shown a blatant disregard for the laws of this country in relation to his criminal activities, did not consider that he would abide by any conditions of bail, nor that his nephew, with whom he had had only intermittent contact, with whom he was said to be going to reside and who would act as surety, would be able to exert any influence over him to ensure that he would respond to conditions. He took into account the fact that removal was not imminent, but considered on balance that, as he had shown violence in the past, he should continue to be detained because there was a possibility of his committing further offences.[49]Yet again a bail application was made and refused, this time on 4th March 2008. The reasons given for refusal were that he was likely to commit an offence unless detained in detention, he had a bad record of offences of violence, he was now subject to a deportation order, a travel document had been obtained from the embassy andthere were also substantial grounds for believing that he would abscond.[50]The same approach was adopted in the consideration or the determinations in relation to further detention. The matter came before Bean J on 2nd April 2008. He adjourned the matter then because there had been an application in BK for leave to appeal. I adjourned it again because when it came before me there still had not been a decision. But on 23rd April 2008 permission to appeal was granted by a single judge in the Court of Appeal.[51]I have not seen the grounds of appeal, but I have read the tribunal's decision in BK. I confess to some surprise that there is even an arguable error of law in the determination of the tribunal. However, it may well be I shall be proved wrong, and it is not a matter for me; it is matter for the Court of Appeal. But it did mean that I directed that there should be a bail hearing. I considered the question of bail and refused it on the basis that I was satisfied (and I remain satisfied) that there was a real risk of absconding. Furthermore, that, despite what the claimant says about having changed his attitude, his past record and, to an extent, his mental condition show that there is a substantial risk that he will not only commit further offences, but that those offences could result in serious harm to the public.[52]The situation is that it is only involuntary returners that are allegedly at possible risk. Thus a voluntary return would, in the case of this claimant, create no risk. And there is no reason why, on the face of it, if he really does have a family life with his wife and child -- there are reasons in the history to doubt whether that family life exists in reality, but even assuming that it does, the matter was dealt with on appeal by an Immigration Judge. He was satisfied that there was no breach of Article 8 if he were returned and that his family could return with him.[53]In my view, the question of possibility of voluntary return is of some considerable importance in the circumstances of this case. I say that because of the decision of the Court of Appeal in R (A) v Secretary of State [2007] EWCA Civ 804, a decision of 30th July 2007. The leading judgment in that case was given by Toulson LJ. In that case the issues were whether there had been lawful detention. The judge of first instance, Calvert-Smith LJ, had decided that he had been unlawfully detained between December 2004 and July 2006, but lawfully detained since July 2006, that is to say between July 2006 and December 2006.[54]He had committed very serious offences: rape and indecent assault of a little girl. He had been sentenced to 8 years' imprisonment in July 1998. It was thought that he was due to be released in 2002, but in fact that was his possible parole date. He would have been automatically entitled to release on 3rd September 2003. He appealed against the decision to make a deportation order, but that appeal was unsurprisingly rejected. So from 4th December 2003 he continued to be detained for the purpose of, initially, deciding on deportation and, thereafter, that he should be deported.[55]He refused to co-operate in obtaining the necessary document to go back to Somalia, and he refused to sign a document that he was prepared to return voluntarily. That was in November 2004. There is no dispute but that up until then his detention was lawful. The judge found that thereafter it became unlawful because there was no carrier willing to take enforced returns to Somalia. He could have been taken if he had consented, but not if he did not. That situation changed in July 2006. That was why the judge decided that detention after July 2006 became lawful.[56]Those are the background facts of that case. In it there was a specific finding by the judge that the claimant had evinced and continued to evince a single objective: namely, to stay in this country by hook or by crook. He was satisfied that if granted bail he would abscond and that he would disable any electronic device if he needed to. There was a high risk, too, of reoffending sexually. So there was an even stronger case in relation to danger to the public and risk of absconding than there is in this case.[57]Toulson J considered in some detail the effect of the refusal to return by consent. He referred to I and to the observations of the court in that case, including those of Dyson LJ, which I have already read. At paragraph 54 Toulson LJ said this:
"54. I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making."
He then went on to indicate that an additional relevant factor was the likelihood of reoffending and the potential gravity of the consequences if he did reoffend.[58]So far as the approach of the court was concerned, he said this:
"62. I intend no disrespect by not going into the refinements of Mr Giffin's argument but dealing with the matter on a broader basis. Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction)."
Longmore LJ agreed with the judgment of Toulson LJ.[59]Keene LJ, although agreeing in the result that at all material times the detention was lawful and

the judge below was wrong to say thatthere was any unlawfulness, said:

"71. It is to my mind a remarkable proposition that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Classically the courts of this country have intervened by means of habeas corpus and other remedies to ensure that the detention of a person is lawful, and where such detention is only lawful when it endures for a reasonable period, it must be for the court itself to determine whether such a reasonable period has been exceeded."
That has been the approach adopted in practice in the domestic cases to which we have been referred.[60]He cites Hardial Singh and I. He goes on:
"In addition, this issue fell to be considered explicitly in the case of Youssef v. The Home Office [2004] EWHC 1884, where Field J held that the court was the primary decision-maker as to the reasonableness of the length of detention..."
I do not need to cite that paragraph. It is in fact paragraph 62 of Field J's judgment.[61]In paragraph 77 he disagreed with what Dyson LJ had said in I, in stressing the need not to overstate the importance of the risk of absconding. It was in Keene LJ's judgment a factor which in most cases would be of great importance. The risk to public safety was not irrelevant, but he did say:
"79. I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation, just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State."
[62]As I read that, what Keene LJ is saying is that the possibility of voluntary return by itself will not justify continued detention if the individual refuses to agree to such voluntarily return. Its relevance lies in cases where there are other grounds which make detention justifiable, and it goes to the length of the period of time which is reasonable in the circumstances. It is no part of the court's function to release individuals who are a real danger, whose detention is justified on the grounds that they may well abscond, and may well commit other offences, simply because, by their own actions, they are prolonging the period within which they are being detained. Having said that, there is of course a limit.[63]A person's refusal to avail him or herself of voluntary return does not justify detention ad infinitum; it is not an absolute bar to release. In all these cases, there is still a period of time beyond which it would be unreasonable to continue to detain. But in an appropriate case the length of that time can be extended, because of the refusal to undertake voluntary return, when that refusal is prolonging the period of detention. Equally, in these cases there is no magic period, there is no cut-off point where one can say, for example, detention for more than 2 years is absolutely out of the question and unreasonable; detention for less than that may well be reasonable. I have plucked the figure of 2 years out of the air. I am not suggesting that that is necessarily a reasonable cut-off point. Of course detention must be only for as long as is necessary and reasonable in all the circumstances, but it depends entirely upon the individual circumstances of a particular case.[64]I have already indicated that I am entirely satisfied in the circumstances of this case that there is a real risk of absconding. That means that to release would be likely to undermine the whole purpose of deportation, which is clearly in the public interest and for the public good, as the Secretary of State has decided; and that decision has been upheld on appeal.[65]Mr Goodman rightly points out that when this matter came before me in April 2008 and May 2008, particularly on 18th April 2008, I gave what I indicated were some provisional views. I make it clear that this was after hearing argument from the claimant's counsel, but not any argument from the defendant. What I said then, according to the solicitor's notes, and I have no reason to doubt them, was this:
"Of course if [the Court of Appeal] does grant permission [that is in the BK] we are so close to what clearly isthe limit the secretary of statefor the home department should very seriously consider whether [she] intend[s] to maintain detention. I do recognise and I do accept that. Sufficiently lengthy [that is the detention] to call into question whether he should remain in custody..."
I went on:
"[Apparently] we are very much on the borderline on the authorities even taking the most favourable view of the Secretary of State['s approach]. I think on the authorities it cannot be better thanborderline. My [provisional] view is that... any further period, more than a couple of weeks, would be unjustified. [The] results of any substantial delay is that detention will not be justified. That of course [is] my provisional view only."
Now that permission has been granted for the appeal, I am told that the appeal is due to be heard in November. So one can expect the decision by the end of next term, that being some 6 months on. The relevant period of detention runs from December 2006, that being when the appeal process came to the final conclusion. Thus he has already been in detention for some 18 months or so, and if detained, and on the assumption that he continues to refuse to return voluntarily, he will have been in detention for some 2 years by the time the Court of Appeal reaches its decision. If it decides that returns can no longer properly be made, there will have to be a reconsideration by the Secretary of State. Then, whatever the decision now, it will be very doubtful whether any detention will be able to be maintained, notwithstanding that he could still return voluntarily, but that will depend upon the circumstances that arise at that time. I am not saying, and I must not be taken to be saying, that there is, assumingI permit custody to continue, a cut-off point at that time. It will merely and obviously be the more difficult then for the Secretary of State to maintain detention if the Court of Appeal decides that the AIT was wrong and that the position in relation to return to the DRC is such that those returned involuntarily are liable to possible persecution.[66]I have had to reconsider my view in the light of the full material and the full arguments that have been put before me, and consideration of the authorities in much greater depth than was possible when I formed my preliminarily view. I am persuaded by submissions made by Mr Dunlop, the material to which I have referred and the approach which the courts, particularly the Court of Appeal, have considered appropriate that detention now remains lawful. I say "remains". Perhaps I should use the word "is" lawful because, for reasons that have become apparent, my decision is focused on, and at this stage limited to, detention from now on.[67]The only thing I should add is that there has been reference to the mental illness that the claimant suffered. In the OEM, mental illness is a contraindication to detention. However, I note from the claimant's solicitor's statement of 4th June 2008 that the claimant's mental health, he said, is now stable and well managed, he is receiving the necessary medication in detention, and I do not regard any possible mental illness as a reason for detention to cease. It is no reason, either, for deportation not to take place.[68]That would have been all that was necessary for me to decide in relation to this case but for a disturbing development. On 23rd June 2008, the day before the hearing before me, the defendant served a second statement from Ms Honeyman. That statement, in paragraph 4, says this:
"4. My original statement in relation to the approach to the detention of foreign national prisoners reflected my understanding at that time. However, clarification is being urgently sought as to whether that understanding was correct... Once this has been clarified a further statement will be made should that prove necessary."
[69]At the hearing I was faced with the extraordinary situation that I was told by Mr Dunlop that he was unable to inform me precisely what the policy was that was applied in considering detention of foreign prisoners who were to be considered for deportation, both while that decision was being reached and pending actual deportation, if the decision was that there should be deportation. The problem has been created, as I understand it, by political decisions back in 2006, that resulted from knowledge that a number of supposedly violent and dangerous foreign offenders had been released from custody, notwithstanding that they were due to be deported, and concern as to the risk to the public as a result of that. I have a vague recollection that there were at least a few cases in which such offenders had actually committed further offences, in one or two cases quite serious offences, following their release.[70]On 26th June 2008, after the hearing, there was served an undated statement from Mr David Wood, who is Strategic Director of the Criminality Detention Group of the UK Border Agency. He described the developments since April 2006 and the processes and policies in relation to the detention of foreign national prisoners.[71]One of the problems that was identified as a result of the concerns in April 2006 was that the Home Office did not take the necessary steps to enable deportation to take place at the time of, or very shortly after, release. So, in terms of the existing policy, it could not be said that removal was imminent, and in any event the policy contained a presumption of liberty. As a result, instructions were given to case workers so that the Secretary of State could tell the House of Commons on 3rd May 2006 that robust procedures had been put in place to deal with the issues. Those robust procedures involved a reversal of the published policy in respect of any prisoner sentenced to 12 months or more, or having committed crimes of violence involving drugs or sex. Detention was regarded as reasonable in such cases, unless there were exceptional reasons for release.[72]There were further refinements on this. On 9th October 2006 the Home Secretary stated in the House of Commons:
"In addition, I made a further commitment: I said that we would not release those foreign national prisoners who ought to be considered for deportation before such consideration had been completed and we would continue to detain them until that was done."
In response to the Home Affairs Committee on 12th December 2006, he said:
"... I regarded it as my duty to make sure that the public were protected from people who had committed offences and who ought to be considered for being removed from the country for the public protection. Therefore, until such time as that decision can be taken, I have decided that they ought to be detained."
[73]In paragraph 4(a) of his statement, Mr Wood says this:
"The Home Secretary's statement that foreign national prisoners would not be released before consideration for deportation had been completed was understood within the UK Border Agency to refer to removal or abandonment of deportation action, and not merely to the service of a notice of a decision to deport. The statement itself provided a public affirmation that public protection was firmly at the centre of detention policy in foreign national prisoner cases and reflected a fundamental shift in policy towards such cases that had occurred following the events of April 2006."
He then went on in paragraph 6:
"Instructions were provided to CCV case workers by way of a revised chapter 16 of the enforcement case worker manual approved by the then director on 4th August 2006. This addressed detention in the following way: 'Case workers should look carefully at the history and details of the case to establish if the applicant would fall under the normal detention criteria. If evidence of the criteria for detention are met, there is a need to balance the circumstances of the case as a whole against the need to maintain an effective immigration control. The more criteria are met, the more likely detention becomes. However, detention must be considered on a case-by-case basis.'"
Then the various criteria are set out: the risk of absconding, failure to comply with conditions, showing a determination to breach the law,no close ties with the UK and no settled address.[74]So far, there is little to criticise in that, on the assumption that it is on the approach that detention is not to be assumed, but is to be imposed only if it is regarded as necessary. However, apparently there was an e-mail from the director to the deputies on 21st December 2006, which said this:
"The Home Secretary has been very clear in his statements: there will be a presumption of detention in all foreign national prisoner cases until removal. We need to ensure that all staff are applying this."
There was apparently an interim instruction issued to case workers on 20th February, followed by a detention process instruction on 13th September 2007, which contained the criteria to which I have already referred, together with reference to extracts from the Home Secretary's statements. Finally, there was the issue of what has been described as the "Cullen guidance" in November 2007 and March 2008 respectively.[75]The Cullen document is far from clear that the initial detention is on the basis of "detention unless...", as opposed to "detention only if...", if I may put it that way, and is concerned with whether it would be appropriate to release. It is only having regard to the e-mail instruction and the approach of the Secretary of State that the reversal of the approach to detention occurs.[76]Mr Wood continued in paragraph 13:
"Thus public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release will not apply. This is because in such cases there is a clear imperative to protect the public from the risk of harm which arises through a risk of reoffending if the individual is released, as well as an increased risk of absconding evidenced by a past history of lack of respect for the law. The public protection imperative has the effect that the starting point is that there is a presumption in favour of detention. However, this presumption will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal. In assessing what is a reasonable period in any individual case, the case worker must look at all relevant factors to that case, including the particular risks of reoffending and absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences. Case workers are given guidance in Cullen 2 as to whether an offence is more or less serious."
[77]Finally paragraph 16:
"Those convicted of serious offences are not considered for release under these broad criteria because by definition these serious offences are outside the broad categories of lower risk caseswhich the criteria encapsulate. As already set out above in relation to Cullen 1, this does not mean that detention is automatic or indefinite in these cases, rather that, given the relatively higher risk of harm or absconding that is likely to be present in such cases, detention can generally be justified for a longer period on public protection grounds. The approach outlined above, giving substantial weight to public protection and the heightened risk of absconding, must be followed in the more serious cases."
[78]Thus what appears to be happening is that a blanket approach is being adopted that if anyone has committed what is regarded as a serious offence, then it will automatically be assumed that he must be in detention. In reality, what the published policy indicates, and what may be the only lawful policy, would require that individual consideration is given to the circumstances of a particular case. The dangers to the public of release and the risk of absconding are highly relevant considerations, but the purpose of detention must be for removal or for consideration of whether removal should take place. In all cases, it is surely necessary to consider whether the individual is sufficiently high risk, notwithstanding the circumstances which led to his imprisonment.[79]The problem with Mr Wood's statement, too, is that it was clearly not appreciated by all; Ms Honeyman's statement of 1st April 2008 made it clear that she was apparently unaware of the change of approach.[80]Mr Goodman submits that the existence of an approach which is contrary to the published policy means that detention is therefore unlawful. He points to the wording of Article 5 of the Human Rights Convention which, so far as material, provides:
"1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law..."
The relevant one here is:
"f the lawful arrest or detention of a person... against whom action is being taken with a view to deportation or extradition."
[81]Therefore, there must not only be action taken with a view to deportation. That action can include deciding whether deportation is to be effected. In the context of Article 5, the word "deportation" includes removal. There is, by Article 5.1, a presumption of the right to liberty and that any deprivation must be in accordance with the procedure prescribed by law.[82]Article 5.4 provides that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The right to judicial review being exercised is the right which complies with Article 5.4.[83]Mr Goodman relies on the case of R (Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768. Putting it broadly, that case supports the consideration that the Secretary of State, in detaining, must act in accordance with published policy. To act in accordance with an unpublished and an undisclosed approach, as he submits happened here, means that the detention is therefore unlawful. That undoubtedly is the general approach.[84]It is to be noted that in A Toulson LJ made the point that it was the court's role to consider, on the correct principles, whether detention was or is lawful. As I have said, I am concerned with whether detention now is lawful, whatever may have been the position before. That approach conforms to that applied by Munby J in a case known as R (SK) v Secretary of Statefor the Home Department [2008] EWHC 98 (Admin), that case being under appeal. Munby J decided that detention was, when the matter came before him, lawful, but that that prior detention had been unlawful for reasons into which it is not necessary for me to go.[85]It is to be noted in this case that the original detention, based upon the letter of 22nd June 2006, purported to apply the correct policy (ie that detention would be a matter of last resort), that is to say the published, known OEM approach. It is apparent that not all those involved in making decisions were aware of the change of approach. Although it seems that, so far as reviews were concerned, from evidence that is now before the court, the approach was as Mr Wood indicated it ought to have been in his statement.[86]It seems to me that I have to consider for myself whether detention, applying the correct principles, based on Hardial Singh, is lawful. Mr Goodman submits that it is not for the court to remedy any defects in the process or any unlawfulness perpetrated by the Secretary of State. That is not what the court is doing. The court has to take account not only of the presumption in favour of liberty, but also has to take into account the circumstances, the danger to the public if the man is released, the risk of absconding so that deportation is frustrated and the reasonableness, on the relevant principles, of continuing detention. That does not depend upon any matters raised by, or possible mistakes made by, the Secretary of State.[87]In SK Munby J suggested that it was not appropriate for the court to rely on matters not raised by the individual officer in objecting to bail. In that case the matter that was not relied on was the risk of absconding. I am bound to say that I do not agree with that. It seems to me that the court is not only entitled to, but is bound to take into account all relevant material in deciding for itself whether detention is or is not lawful, both that which is favourable to and that which is unfavourable to a particular individual.[88]Accordingly, for reasons I have given, I am satisfied that it is proper now to maintain detention, and to maintain it until the decision of the Court of Appeal in BK is known, on the assumption that that decision is to be taken by the end of next term, and on the assumption that there is no material change of circumstances between now and then. I am satisfied that that is the case because there is a substantial risk of absconding, there is a danger to the public and the question of voluntary return, which could end the detention.[89]That leaves for further argument, because it has not been possible for counsel to argue the matter, save on paper, in relation to the further evidence about the change of approach that has come since the hearing before me. There is clearly going to be an issue whether any past detention should be regarded as unlawful, notwithstanding the situation today, and, secondly, whether the policy which has been applied according to Mr Wood is itself unlawful as being a breach of Article 5. Those arguments will clearly have to be considered at a later date. As things stand, I do not accede to the claim that there should be a declaration now that further detention is unlawful or that there should be a release from detention.[90]That is an interlocutory judgment, in that it does not dispose of the whole of the claim. I take it, Mr Goodman, that you wish to maintain the balance of the claim?[91]MR GOODMAN: Yes, my Lord, and I would like to clarify the extent of the remaining balance. Your Lordship has indicated in your final paragraph that the extent to which the policy may be unlawful, and therefore contrary to Article 5, remains to be argued.

MR JUSTICE COLLINS: Yes.

[93]MR GOODMAN: What I would like to clarify is whether in that context I would still be entitled to argue at a future hearing that, if there is indeed a breach of Article 5, it would then be contrary to section 6 of the Human Rights Act for the court to do otherwise than to release the claimant thereafter.[94]MR JUSTICE COLLINS: No, because I think I have dealt with that. I have considered all the relevant factors, including Article 5, in deciding whether, for now, detention is lawful. There are two issues here. One is: what actually was the policy that was applied in deciding to detain? Because either the letter of 22nd June is misleading, in the sense that whoever wrote it knew perfectly well that it was untrue, or he was applying that policy, as set out in the letter. I suspect, I have not checked it, the IS whatever it is -- and that is possible, because one knows that there has been remarkable confusion as to what was actually the correct policy. So there is that issue, as to what was actually applied, initially, andat the stages of detention.[95]MR GOODMAN: Yes.[96]MR JUSTICE COLLINS: And, secondly, whether that renders the detention unlawful. It may not, because at all material times it could be said, and no doubt will be said, that even if the announced policy, and what may be regarded as the correct policy (ie "detention should not occur unless...") was applied, he would have properly and clearly, without doubt, been detained. That is an issue which I am not deciding, because I do not have the submissions or, indeed, detailed material -- it was not before me at the hearing -- to enable me to deal with it. Those seem to me to be the issues.[97]MR GOODMAN: My concern is to clarify whether, in terms of remedy, following the further hearing, it is still open to me to seek a mandatory order directing this claimant's release on the basis of further submissions.

MR JUSTICE COLLINS: I think not.

[99]MR GOODMAN: In that case, my Lord, it falls to me, at the moment, I would submit, to seek permission from your Lordship on that matter.[100]MR JUSTICE COLLINS: Yes, I think you probably do need permission on that, because I had intended to indicate, and I thought I had made it clear, that the detention from now on was, in my view, lawful, subject to any changes of circumstance and so on after that. I think really all I can say is that today it is in, my view, lawful, and it would be lawful, on the face of it, to continue it at least until the Court of Appeal's decision at the end of next term.[101]MR GOODMAN: My Lord, may I then apply for permission in that context?

MR JUSTICE COLLINS: You may indeed apply.

[103]MR GOODMAN: The first basis on which I do so is that the issue of law between your Lordship and myself is the proper approach to take to the Hardial Singh question. In my submission, once, and if I do indeed establish that detention in this case is pursuant to a policy which, in applying a presumption in favour of detention, is unlawful, the proper approach for the court to then ask is not, as your Lordship has suggested, whether it would potentially continue to be lawful to detain the claimant under the Hardial Singh principles, but the other way around: the Secretary of State must then show that there is no reasonable alternative decision that could have been made in the exercise of her discretion, and unless she can show that, it would then follow that detention is unlawful.[104]MR JUSTICE COLLINS: Yes. The problem with your claim is that my decision is, and it follows established authority, that I am applying what I regard as the correct principles, which are the Hardial Singh principles now, and deciding that on that basis the detention is now lawful. I have not made any decision in relation to past detention. I have merely indicated that it has certainly not been established that the detention was necessarily on the wrong basis, because there is at least some indication that at the early stages, when detention was decided on, the case worker may not have been aware of the change, as indeed Ms Honeyman indicates in her statement. That may or may not turn out to be correct, and it may be that there is a need for some further clarification and evidence in relation to that, because the evidence that has been produced has been produced in something of a rush, because I think Mr Dunlop was rather taken by surprise, and maybe the Treasury Solicitor too, by what had happened.[105]There are other cases, I know, in which this issue is to be raised. I think Mitting J has a case which has been adjourned. I do not know if either of you are involved. That was rather the other way around, because Mitting J -- this is from what he tells me; I do not know the details of the case -- was presented with an assertion that there had been a change in relation to considering release, and the Secretary of State is now prepared to release on the basis of a new policy, which is the Cullen policy but, as I think is apparent, the Cullen policy does not have much to do with release, although it purports to. It is actually concerned with not releasing in particular circumstances. That will be a matter for Mitting J to consider.[106]There is also a case before the Court of Appeal which has been adjourned, May LJ told me, pending the material being put before Mitting J. So I am not entirely clear where things stand. This is certainly not the only case. I have dealt with this in some detail in the hope, after making it clear that the court will consider the position in the case, as from the date before it, but will apply the Hardial Singh principles. That is, in my view, what should be done at this stage. But I think it is important that, as soon as possible, the question as to whether the change of policy is actually lawful [is addressed]. I am bound to say that my preliminary view is that it is not, because it appears to me to be in contravention of Article 5, the correct approach, and it is a classic example of politicians wanting to do something and not really being given the necessary advice as to whether they are actually able to do it.[107]It may be, you see, that in many cases it does not make a great deal of difference, because it would be quite justifiable to detain serious offenders on the grounds that they were likely to abscond, that they were a danger to the public and that removal was likely to take place in a reasonable time. So it may well be that in many cases the change would make no difference.[108]MR GOODMAN: My Lord, the basis of my request for permission is that, assuming it is certainly arguable that the policy of presumptive detention is unlawful, what consequences flow from that? My submission is that the question is not whether detention would be justifiable, had the appropriate policy been applied. It is: can it be shown that no other decision could have been taken? Because the Secretary of State has a discretion whether to release or detain, and that discretion is circumscribed by the policies which he introduces.

MR JUSTICE COLLINS: Yes.

[110]MR GOODMAN: So the situation does not arise that one is simply concerned, as a fallback, with the Hardial Singh factors. If that were the case, then the actual decision or decisions taken by the Secretary of State for the Home Department would, on their face, be entirely irrelevant and could consider wholly irrelevant factors, provided that underlying that there could have been a justifiable decision. In my submission that, where liberty is in question, cannot be the correct approach. That is the first basis for my application for permission. Your Lordship has seen the express decision made this week to maintain detention on the basis of a presumptive detention policy which was disclosed this week.[111]MR JUSTICE COLLINS: Yes. I think that was wrong.[112]MR GOODMAN: My Lord, the second basis is the Hardial Singh balance itself. Your Lordship will have seen my submissions earlier this week that these issues factor in as part of all the circumstances that fall to be considered. So, even on the Hardial Singh basis, these are factors which your Lordship should have taken into the balance.[113]My further basis, my Lord, is that clearly this case raises issues of wide general importance. So, on that basis, in any event, permission should be granted.[114]MR JUSTICE COLLINS: No, I am afraid I am against you, Mr Goodman. I think that the decision that I have reached, which is in a sense an interlocutory decision, because it does not dispose of the case, is limited to the application of clear authority to the facts of this case. I have approached it on the Hardial Singh principles. Again, that is applying those principles to the facts of this case. So essentially this is a decision which is driven by the facts and circumstances of this case and does not really break any new ground.[115]The question as to whether the new policy, if I can put it that way, is or is not lawful, and the effect of that on past detention is a different matter, but to an extent that may -- I do not quite know what SK will decide on.[116]MR GOODMAN: My Lord, there are certainly likely to be some issues arising in SK. That falls to be considered on Monday, 28th July. The last day of term is 31st July, which raises the question whether your Lordship's previous indication in this matter should be considered before the end of term. It might be feasible in that context but only if it could be heard in the first week of July, realistically.

MR JUSTICE COLLINS: There is no chance of that.

[118]MR GOODMAN: It seems unlikely, in which case my learned friend's suggestion prior to your Lordship's judgment was that we take some time to consider directions.[119]MR JUSTICE COLLINS: Yes, I think that would be sensible, and I imagine, although you have taken a note, you will want to see the full transcript before you make any final decisions. I am not granting leave to appeal but that does not preclude you from apply to the Court of Appeal. I think the sensible thing would be to say that time can run from when you receive the transcript.[120]MR GOODMAN: I am grateful.

MR JUSTICE COLLINS: You should get the transcript, I hope, by the week after next.

[122]MR GOODMAN: In that case, my Lord, I am content for the other matters to be put over to further submissions.[123]MR JUSTICE COLLINS: Yes, I hope you will be able to agree any further directions, if any are needed, and I will deal with them in writing if I have to.[124]MR DUNLOP: My Lord, may I just flag up an incredibly trivial matter, for the sake of the transcript? There was one moment where you said, "I have to consider for myself whether deportation is lawful". I think what you meant was "detention".

MR JUSTICE COLLINS: Did I say that?

[126]MR DUNLOP: Yes.

MR JUSTICE COLLINS: That must have been a slip of the tongue.

[128]MR DUNLOP: I am sure it was, but just for the sake of the transcript.[129]MR JUSTICE COLLINS: Thank you. I will, I hope, spot that when I look at the transcript. There are one or two errors that I have made, I suspect. I hope I will spot them.

Cited in 5 later judgments