Huang, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2069 (Admin)

[2011] EWHC 2069 (Admin)

Case No CO/1724/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 28 th July 2011

Before

GRAHAM WOOD QC

SITTING AS A DEPUTY JUDGE OF THE HIGH COURT

Between

THE QUEENClaimant

on the application ofClaimant

BAOYING HUANGClaimant

SECRETARY OF STATE FORDefendant

THE HOME DEPARTMENTDefendant

Philip Nathan (instructed by Messrs Lawrence Lupin) for Claimant

Susan Chan (instructed by The Treasury Solicitor) for Defendant

Hearing Hearing date: 8 June 2011

Judgment

Graham Wood QC :

[1]The Claimant is a national of Burma, although she has a Chinese passport granted in January 2007. She was admitted to the United Kingdom in October 2007 on a student visa at the age of 17 years. Both before and after the purported curtailment of her immigration status in April 2009 the Claimant has been seeking to remain in this country on asylum and humanitarian grounds, alleging that because of her pro-democracy views and protests against the Burmese government she is likely to suffer persecution were she be returned to China, and from there to Burma. However, this court has not been concerned with the merits of such an asylum claim which has been dealt with by a protracted process through determinations by the Secretary of State and the appellate jurisdictions of the Tribunals Service. I understand that the immigration status of the Claimant may yet return to this court on fresh judicial review proceedings.

[2]The issue before this court is now an extremely narrow one, even though general permission to apply for judicial review was given by Black J on 16th October 2009 without specific identification of any of the five grounds of challenge which were then pursued. It concerns the lawfulness of the Claimant’s detention at an immigration centre between 3rd June 2009 and 3rd July 2009, and a much shorter period between 1st and 3rd April 2009. If the detention is deemed to be unlawful, the remedy will be in damages. No other mandatory or declaratory relief is sought, but it is fair to say that this case raises some important points of principle on the relationship between the powers of detention of the immigration authorities and the appeal rights of individual immigrants.

[3]It is necessary to set out the immigration and procedural history to gain an understanding of the discrete issue that arises in this substantive hearing.

Immigration and Procedural History and Factual Background

[4]On 24th April 2008 the Border Agency was notified that the Claimant, then on a student visa, was failing to attend her college course at the London School of Science and Technology. Thus she was in breach of her leave conditions.

[5]On 3rd July 2008 the Claimant was asked for details of her studies by the Defendant. However, before this information was provided, on 9th September 2008, the Claimant submitted an asylum claim and was subjected to a screening interview. She asked that she be considered as refugee, on the basis that she had a well-founded fear of persecution were she to be returned to China (from where she was likely to be sent to Burma).

[6]On 23rd September 2008 the Claimant submitted further grounds in support of her asylum claim and was interviewed again by immigration officers on 4th December 2008.

[7]On 6th January 2009 a decision was made by the UK Border Agency in relation to the asylum claim. It was rejected for the detailed reasons set out in the letter of the same date. The reasons letter also contained a certification referred to as being made under section 94(2) of the Nationality Immigration and Asylum Act 2002 that the asylum claim was “clearly unfounded”, thus denying the Claimant an “in-country” right of appeal . The significance of this will be apparent later in this judgment. It is not entirely clear whether this reasons letter was ever received by the Claimant.

[8]On 10th February 2009 a “Notice of Immigration Decision”, involving a refusal to vary leave to enter or remain, and a decision to remove was signed. This is an important trigger document under the Immigration (Notices) Regulations 2003. It should have been served on the Claimant but it was not. It is crucial to what happened subsequently.

[9]On 17th February 2009 the Claimant reported to immigration officers and was detained in anticipation of her imminent removal. Directions were made for her removal to China on 22nd February 2009.

[10]It is at this point that the judicial process was invoked, as so often happens in these cases at the eleventh hour. On the same date (22nd February 2009) an unsealed copy of a Judicial Review claim was sent to the Defendant by the Claimant’s former solicitors, thus delaying the removal, and the proceedings were formally served on 23rd February 2009. The grounds of review were opaque and confused, but sought to challenge, inter alia, the denial of a right of appeal and the removal on the grounds that there was a viable asylum claim. The Claimant in the meantime remained in detention.

[11]On 1st April 2009, the Border agency communicated its decision to the Claimant on the further representations made in the judicial review claim. It was determined that these representations did not amount to a “fresh claim” applying the Immigration Rules. It was on this occasion that the Claimant was served for the first time with the Notice of Decision to Remove under the notice regulations, informing her that she no longer had a right to remain in the country and that directions would be made for removal in the event she did not voluntarily leave. Because no notice had been issued previously, and because the Claimant had technical extant leave to remain on her student visa (which could not be curtailed without notice), it was conceded by counsel for the Defendant that in the period up to this point (17th February to 1st April 2009) the Claimant had been unlawfully detained. In due course damages will be assessed for this unlawful detention.

[12]On 3rd April 2009, the Claimant was released from detention.

[13]On 27th April 2009 Wyn Willams J refused permission. He observed that there was “no arguable illegality” in the decision of the Secretary of State. Significantly, he directed that renewal of the permission application should not act as a bar to removal. This meant that the Border Agency was at liberty to issue removal directions regardless of the steps taken by the Claimant to pursue her claim.

[14]On 3rd June 2009, the Claimant was detained and removal directions were issued for 9th June. This was the catalyst for the involvement of the Claimant’s current solicitors, Messrs Lawrence Lupin, who are clearly competent and experienced in immigration matters. A well-reasoned and lucid submission was made by letter dated 5th June 2009 to the UK Border Agency outlining the asylum and humanitarian claim and arguing that such submissions should be treated as amounting to a “fresh claim”.

[15]These submissions were deemed not to amount to a fresh claim in a letter dated 5th June 2009 (although not apparently received until several days later because of what followed).

[16]On 6th June 2009, the Claimant by her new solicitors, lodged amended grounds of claim drafted by counsel. It sought(a) a quashing of the decision to remove,

(b) a quashing of the certification of “clearly unfounded”

(d) a declaration that the Claimant had an in country right of appeal,

(e) a declaration that the Claimant’s previous and current detentions were unlawful in the absence of an impending right to remove

(f) damages for unlawful detention and

(g) an interim stay on removal. Of significance is that this was the first time that an argument was being raised about the procedural unlawfulness of the certification of “clearly unfounded” because it was incorrect on its face (referring to the wrong subsection on rights of appeal – see later)

[17]On 9th June 2009, in pursuance of (g) above, Keith J granted ex parte the stay sought and directed that the oral permission hearing take place on 6th July. He directed the service on the Defendant of the amended claim form by 16th June 2009. The Defendant was given two days notice to apply to vary or discharge but did not exercise the right.

[18]On 3rd July 2009 the Claimant was released from detention.

[19]On 6th July 2009 the case came before Collins J but was adjourned for reasons which are not obvious.

[20]On 16th October 2009 the oral permission hearing was dealt with by Black J when permission was granted to apply for review without specifying individual grounds.

[21]On 19th January 2010 the Defendant lodged detailed grounds of defence.

[22]On 23rd August 2010, notwithstanding the denial in the amended grounds of defence that any right of appeal existed in-country to the First Tier Tribunal, the Claimant’s solicitors initiated such an appeal. It was ostensibly out of time. On 13th September 2010 a direction was issued by the First Tier Tribunal seeking clarification of the issues within the Judicial Review proceedings and in particular whether an in-country right of appeal was being contested. The Claimant’s solicitor replied to this direction and on 30th September 2010 a duty judge dealt with the application on paper by way of directions and determined that the appeal was in time. (The Claimant by her counsel relies on this as being an implicit acceptance by the tribunal of jurisdiction notwithstanding the objection in the JR proceedings by the Secretary of State to the existence of an in-country right of appeal.)

[23]On 20th October 2010 both parties signed a consent order to stay these proceedings to await the outcome of the tribunal proceedings. However in a letter of the same date the Defendant maintained its position challenging jurisdiction of the tribunal and reserving the right to argue it before the first tier tribunal judge.

[24]On 25th October 2010 a hearing before the Tribunal was commenced and adjourned. I am informed by Mr. Nathan of counsel for the Claimant that the presenting officer for the UK Border Agency accepted the jurisdiction of the Tribunal. As I observed in court, this is quite extraordinary, in view of what had passed between the parties before and since. Quite simply the right to an in-country right of appeal was never argued before the Immigration Judge.

[25]On 23rd December 2010 the matter came before a further tribunal and the appeal was rejected on the merits. No presenting officer appeared for the Secretary of State. From a reading of the decision, it is plain that the question of jurisdiction was never raised.

[26]In February 2011 the Claimant was refused leave to appeal to the Upper Tribunal. I am told that this decision is the subject of separate judicial review proceedings.

[27]It is axiomatic that the sequence of events described above has led to the significant narrowing of the original claims for relief in the amended claim issued on 8th June 2009. It is clear that (perhaps partly by default) the Claimant has been able to achieve the very thing that she had set out to achieve by her judicial review claim, namely the exercise of an in-country right of appeal, despite the denial of such a right by the Defendant in its certification procedure. This court is therefore not required to review the lawfulness per se of the “clearly unfounded” certificate or the rejection of the fresh claim. Indeed, of the claims set in the amended claim form of 6th June (a) to (g), the only matter remaining for determination by this court is (e). Within that claim, in view of the acceptance by the Secretary of State that the February to April detention (up to 1st April only) was unlawful because of the non service of the notice of decision the only significant period of detention in dispute is that from 3rd June to 3rd July, although there is the additional period from 1st to 3rd April to consider.

The respective cases

[28]The Claimant’s case in outline, advanced by Mr. Nathan, is that there was no imminent removal on 3rd June justifying detention, because the served notice of decision was defective on its face and could not have denied an in-country right of appeal (Issue 1). If this is not right, and the detention was nevertheless lawful, it ceased to be so at some point after 9th June 2009, when Keith J stayed the removal and the Claimant remained in detention until 3rd July. In anticipation of a renewed oral permission application there was no good reason for the Defendant to continue the detention. The Defendant, it is said, did not follow her own issued guidance. There was no imminent removal and no identified risk of absconding (Issue 2).

[29]The Defendant, by Miss Chan, says that any defect on the served notice of decision was one of form and not substance, and in any event it could not be said to invalidate the decision. (Issue 1). In relation to the detention after 9th June, she says that this period of detention was not unreasonable in view of the need to consider the complexities of the Claimant’s case in detail and at a time when removal was still imminent. (Issue 2).

[30]It is common ground that if I find that the decision was invalidated in any way, thus preserving an in-country right of appeal, then there was no justification for detention in any part of this period.

[31]The case has been argued before me with vigour and enthusiasm by both counsel, although no issue of immigration status or right to remain will be determined by my decision.

The relevant statutory provisions

[32]These are labyrinthine and not easily penetrable for those without significant experience of asylum and immigration cases. It seems to me that the relevant starting point must be the Claimant’s immigration status excluding any asylum or human rights claim. She had leave to remain by reason of her student visa. Study was a condition of that leave.

[33]Section 10(1) of the Immigration and Asylum Act provides “(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if— (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave……….”

[34]By August 2008 the Defendant was entitled to treat the Claimant’s leave as having come to an end for breach of the condition of her leave (study) and to issue removal directions. Beyond this no further decision was required because of subsection (8). “(8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.”

[35]Thus, as at early July 2008, the Claimant may well have been on the receiving end of removal directions had it not been for the fact that she was now making an asylum and humanitarian application, by which she would be seeking to vary her immigration status. Her application was considered under HC 395 of the Immigration Rules paragraph 327 (which it is unnecessary to recite as the merits of the asylum application do not fall to be considered by this court.)

[36]There is a right of appeal against an immigration decision arising under the Nationality Immigration and Asylum Act 2002. The relevant parts of Section 82 provide:

“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2) In this Part “immigration decision” means— (a) refusal of leave to enter the United Kingdom, (b) refusal of entry clearance, (c) refusal of a certificate of entitlement under section 10 of this Act, (d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom, (g) a decision that a person is to be removed from the United Kingdom by way of directions under [section 10(1)(a), (b), (ba) or (c)] of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom)…………… … (4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”

[37]The parties accept that the Notice of Immigration Decision would have been an immigration decision under both 82(e), because the Claimant’s student leave had been vitiated by her condition breach and she was being refused the variation of leave on asylum grounds and under 82(g) because a removal decision had been made.

[38]Section 92 deals with the right (or otherwise) to bring an appeal within the UK. The relevant parts are:

“(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. (2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j)………… (4) This section also applies to an appeal against an immigration decision if the appellant— (a) has made an asylum claim, or a human rights claim, while in the United Kingdom…”

[39]Thus, on the face of it because the immigration decision in part related to a section 82(e) decision, and because it was an asylum and human rights claim made within the UK, the Claimant had an “in country” right of appeal.

[40]Section 94 is the crucial section on which the main issue in this case turns:

“(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both). (1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded. (2) A person may not bring an appeal to which this section applies [in reliance on section 92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.”

[41]It is accepted that section 1A was added by way of amendment because of a lacuna; many applicants on asylum and human rights claims who already had leave on some other ground may not have been caught by subsection 2. Essentially, this is the provision which enables the Secretary of State to certify that a claim is “clearly unfounded”. By such a mechanism the immigrant is denied an in-country right of appeal. The purpose behind the provision is plainly to overcome appeal proliferation and the prolongation of the process in obviously hopeless cases. These certified cases are the subject of frequent challenge in the Administrative Court and may well have been in the current case had the Claimant not achieved her in-country appeal by another route.

[42]The power to detain pending removal is set out in Schedule 2 of the Immigration Act 1971, paragraph 16:

“(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending— (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.”

[43]Finally, in terms of procedure, are the Immigration (Notices) Regulations 2003:

“4. —(1) Subject to regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable………” and “5. —(1) A notice given under regulation 4(1) is to— (a) include or be accompanied by a statement of the reasons for the decision to which it relates; and (b) if it relates to an immigration decision specified in section 82(2)(a), (g), (h), (i) or (j) of the 2002 Act, state the country or territory to which it is proposed to remove the person. (2) … (3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of— (a) his right of appeal and the statutory provision on which his right of appeal is based; (b) whether or not such an appeal may be brought while in the United Kingdom; (c) the grounds on which such an appeal may be brought; and (d) the facilities available for advice and assistance in connection with such an appeal. (4) Subject to paragraph (6), the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax. (5) Subject to paragraph (6), where the exercise of the right is restricted by an exception or limitation by virtue of a provision of Part 5 of the 2002 Act, the notice given under regulation 4 shall include or be accompanied by a statement which refers to the provision limiting or restricting the right of appeal.”

[44]These notice requirements are also central to the issue which falls to be decided.

The Notice of Immigration Decision

[45]The immigration decision in question (to reject the application to vary leave on asylum grounds and to remove hence an 82(e) and (g) decision) was made on 6th January 2009, but the notice which was intended to serve the decision was not signed until 10th February. It is headed up “Decision to Vary leave to Enter or Remain and Decision to Remove. There is also a second notice dated 1st April described as a “Decision to Remove an Illegal Entrant or other Immigration Offender”. I understand that both of these notices were served on the Claimant on 1st April, although no submissions are made as to why they should have been in a different format. Clearly the reasons letter of 6th January is intended to accompany the notice, (Rule 5(1) (a)) and the two documents should be read in conjunction. There is no separate letter accompanying the later notice.

[46]In the notice of 10th February, and the notice of 1st April the restriction on the in country right of appeal is clearly stated as being under section 94. This is the correct section under which the claim was certified as being “clearly unfounded”. However the problem lies in the fact that on page 7 of the reasons letter, under the formal conclusion, the Claimant’s right of appeal is said to be restricted under section 94(2) which is accepted to be erroneous. The decision related to the variation of a person’s right to remain in the United Kingdom (82(2) (e)) as the Claimant had extant leave, albeit leave that could well have become invalid and she was not a “pure asylum seeker” as such.

[47]The correct certification should have been under 94(1)(A) the provision added by amendment. It is axiomatic, however, that on a reading of the reasons letter the Claimant’s case is being considered as a variation of leave, rather than that of a “pure asylum seeker” as reference is made to her current immigration status.

[48]Miss Chan seeks to argue that on one construction of the rules, it is the notice itself which should be considered under Rule 5(5), in which case it is not defective on its face, as the error appears in the reasons letter. I respectfully disagree. The letter cannot be divorced from the notice and the two are intended to be read together. Accordingly this decision notice should be taken as containing an error. It is interesting that is an error which was continued in the original grounds of defence, when counsel makes repeated reference to 94(2) to justify the certification of “clearly unfounded”, which undermines the current submission that this should be considered as akin to a typographical error. It is then a matter for this court to determine the consequences of that error, and whether it renders the decision itself unlawful.

[49]Mr. Nathan on behalf of the Claimant submits that the identification of an incorrect subsection of a statutory provision which deprives a Claimant of an in-country right of appeal is so fundamental a flaw that the whole legality of the decision is called into question. In particular he relies on the fact that if there was no justification to certify under section 94(2) because the Claimant fell to be dealt with as an existing leave variation immigrant under 94(1)(A), her appeal rights remained, as evidenced by his successful invocation of a jurisdiction before the First Tier Tribunal.

[50]In my judgement, there would be greater force in this submission were it not for the fact that the Claimant was in all respects being considered by the Secretary of State as an existing immigrant making an application for a variation of her leave to remain on asylum grounds, as the first notice dated 10th February makes abundantly plain, even though the second notice is obfuscating. However, a reading of the reasons letter dated 6th January 2009 contains a thorough analysis of the Claimant’s immigration status, including her residence in the UK on a student visa. If that letter had simply referred to section 94, rather than the specific subsection (2) which was the only and generic provision until the insertion of the amendment in 94(1)(A), it inconceivable in my view that an immigrant, receiving the notice and reasons, would not have been fully aware of the certification and the restriction on the right of appeal in country.

[51]Might the Claimant have been misled by the notice and accompanying letter into believing that she still had an in-country right of appeal or in any way prejudiced? I believe not. The law relating to the certification of asylum claims is complex. If the reasons letter and notice had been analysed by any experienced immigration lawyer it would have been self-evident that the Secretary of State was exercising a power which she was entitled to exercise, even if the statutory source was incorrectly identified.

[52]Finally, Mr. Nathan relies on the acceptance of jurisdiction by the First Tier Tribunal to support the fact that the decision cannot have restricted the Claimant’s right of appeal in-country. His submission is reinforced by the acceptance on the part of the Secretary of State within those parallel proceedings (but not within these) that there was such an appeal right.

[53]In relation to the granting of a time extension, he submits that although there is no reasoned decision by the duty judge, nevertheless it is implicit in the decision that an appeal would not have been allowed out of time if the tribunal did not believe that it had jurisdiction. He relies on the decision of L.O v Secretary of State for the Home Department

[2009] UKAIT 00034

by Mr. CMG Ockleton, Deputy President to the effect that a notice of decision which fails to set out a right of appeal, is ineffective, and that time cannot begin to run against an individual until the Notice of Decision is accepted as valid. It seems to me that L.O. is not a case akin to the present case, nor is it support for the proposition which he seeks to advance, namely that this court is obliged to treat a decision made by the Defendant to certify a claim as “clearly unfounded” as unlawful because the tribunal must have come to such a conclusion.

[54]I am far from convinced that this issue was the subject of any detailed consideration by the First Tier tribunal. Even if it was, it was a court of inferior jurisdiction and this court is not bound by any decision, implicit or otherwise.

[55]For these reasons, I have come to the conclusion that the flaw in the letter accompanying the notice is one of form rather than substance. In these circumstances it is still necessary to consider whether such a defect renders the decision itself invalid. In this respect, assistance can be derived from leading text book in the field, McDonald’s Immigration Law and Practice 8th Edition, paragraph 19.43:

“Where a notice fails to comply with any of these requirements, do the defects invalidate the notice, or is the notice still good? Guidance on this question was given by the Court of Appeal in Jeyeanthan, a case about a notice of appeal lacking the necessary declaration. The Master of the Rolls said that: ‘the important question [is] what the legislator should be judged to have intended should be the consequence of non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory … Procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation.’”

The author suggested that three questions were likely to arise:

“(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.) (b) Is the non-compliance capable of being waived, and if so, has it been, or can it and should it be waived in this particular case? (The discretionary question.) (c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)”

These considerations were expressed to apply to procedural requirements for both sides and at all stages of the appeal process. A notice which fails to tell an appellant of a right of appeal is likely to be held invalid, so that time would not begin to run for the purposes of appealing. More recent guidance given by the House of Lords is that the emphasis ought to be on the consequences of the non-compliance, asking whether it was the legislative intention that an act done in breach of the procedural requirements should be invalid. ( R v Soneji

[2006] 1 AC 340

) So, for example, where a notice of a decision to make a deportation order failed to specify the country to which the appellant was to be removed, the appellant, by giving notice of appeal effectively waived the requirement and all the parties knew to which country the appellant was to be deported and so were not prejudiced by the non-compliance. In those circumstances no prejudice was caused by the deficiency so that the notice was held to be valid. ‘the important question [is] what the legislator should be judged to have intended should be the consequence of non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory … Procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation.’”

[56]It seems to me that applying the above principles, consideration should be given to the purpose of the notice regulations, and in particular regulation 5 (5) which deals with the correct statutory provision limiting the right of appeal. This must surely have intended that the immigrant was made aware of a restriction on the right of appeal, to consider such other urgent remedies that might be available, or to prepare himself/herself for imminent removal directions and departure from the country. If the recipient of the notice receives no such information one way or the other, as appears to have happened in the case of L.O. above, then it is easy to see how non-compliance would have consequence. On the other hand, if the defect is one where the wrong subsection for the derivation of the power has been quoted, in my judgment substantial compliance is far more obvious.

[57]More recently in JN (Cameroon) v Secretary of State for the Home Department

[2009] EWCA Civ 307

, in the context of a deportation order failing to identify the correct country, Richards LJ applying the lead judgement of the Court, said “In R v SSHD ex parte Jeyeanthan

[2000] 1 WLR 354

the Court of Appeal adopted a flexible approach in the specific context of immigration towards the effect of non-compliance with a procedural requirement: see, in particular, per Lord Woolf MR at pages 362 C-F and 366 C-D. Ex parte Jeyeanthan was one of the cases considered by the House of Lords in R v Soneji

[2006] 1 AC 340

, which is now the leading authority on the effect of non-compliance with a procedural requirement. The House of Lords held in Soneji that the mandatory/directory distinction had outlived its usefulness and that the emphasis ought instead to be on the consequences of non-compliance and asking whether it was the legislative intention that an act done in breach of the requirement should be invalid: see, for example, per Lord Steyn at paragraph 23. That approach is in line with, but is possibly more straightforward than, what was said in ex parte Jeyeanthan and in any event is the approach that in my judgment should now be applied.”

[58]I am left in little doubt that Parliament cannot have intended that the failure to identify the correct statutory provision in a notice where powers existed under either one of two subsections would have rendered the principle decision which was notified to be invalid. It is inconceivable that the Claimant could by this defective documentation have been misled into believing that she had a sustainable in country right of appeal, when on the entire reading of the reasons letter it was plain that her asylum and human rights claim was being certified as clearly unfounded.

[59]In these circumstances I have come to the conclusion that at the time that the Defendant first detained the Claimant in June 2009, she was in possession of a valid decision to deny the Claimant an in-country right of appeal and was entitled to believe that this was the case. Her action in detaining was unaffected by the subsequent agreement not to contest jurisdiction in the tribunal, because at that stage (3rd June) in compliance with paragraph 16 of Schedule 2 of the 1971 Act, there was an impending removal.

The subsequent detention

[60]Mr. Nathan, on behalf of the Claimant, accepts that if the decision was a lawful one, the Claimant can have no argument in relation to her detention up until 9th June 2009, when the decision by Wyn Williams J, that renewal should not be a bar to removal was varied by Keith J by the imposition of a stay. The question remains, however, as to whether or not the period of detention from 9th June to 3rd July was lawful, that is approximately three and a half weeks. The significance of this period is that amended judicial review proceedings had been filed and there was a fresh and lucid argument raised as to the lawfulness of the immigration decision, even though permission had not yet been granted to apply for judicial review.

[61]The court is reminded that the power to detain a person whose immigration status has been curtailed, as here, is derived from the Immigration Act 1971 Schedule 2. In short, it is a discretionary power which should only be exercised where removal is “imminent.” The signature authority of R v Governor of Durham Prison ex parte Singh

[1984] 1 WLR 704

sets out the guiding principle, namely that the Secretary of State's power to detain persons liable to deportation contained in the Immigration Act 1971 Sch.3 Para.2(3) was only limited to a period reasonably necessary for that purpose, and the Secretary of State must act with reasonable expedition. If that was impossible, then the Secretary of State should not exercise his power at all. The principles governing detention for immigration purposes have been refined and confirmed in recent case law most notably in R (I) v Secretary of State for the Home Department

[2002] EWCA Civ 888

, where Dyson LJ identified the “Hardial Singh principles” as:

“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.”

[62]However the power to detain is circumscribed by other matters as well, and it is insufficient for the detaining authority to maintain that it has complied with Hardial Singh principles. Because any detention must always be justified by the detaining authority the Home Office has issued its own guidance which is updated from time to time which sets out the policy on detention for the purposes of removing those illegally in the UK. That policy has included, amongst other considerations, a presumption of temporary release or temporary admission wherever possible and a policy not to detain where legal proceedings have been brought to challenge the right to remove, on the basis that in such circumstances the removal could not be said to be imminent. In Nadarajah v Secretary of State for the Home Department

[2003] EWCA Civ 1768

, Lord Philips MR emphasised the importance of published policies as qualifying the duty imposed on the authority when considering whether to exercise a power to detain.

[63]Most recently, in a decision handed down within the last few days (and which was anticipated by counsel in the current case) the Supreme Court has considered in great detail the manner in which a power to detain should be exercised when there is a co-existing enforcement guidance which informs policy. In Kambadzi v Secretary of State for the Home Department

[2011] UKSC 23

, the principal question for the court was whether it was sufficient for the detaining authority to follow Hardial Singh principles to justify a detention of a person being held for impending deportation, or whether a failure to follow Home Office published guidance, which even if applied, would not have made any difference to the outcome, would render a detention unlawful. The case followed on from an earlier recent case where the detention powers were extensively reviewed (R (Lumba) v Secretary of State for the Home Department

[2011] 2 WLR 671

). In Kambadzi, which like the present case was concerned with the question of assessing a period of detention as giving rise to a potential claim for damages, and not a mandatory order, Lord Hope, who gave the leading majority judgment, identified the issue at paragraph 13:

“This case is about the way in which the power to detain can properly be exercised, but it raises issues about the existence of the power too. Does the Secretary of State's failure to comply with his published policy for regular reviews to monitor changing circumstances deprive him of his executive power to continue to detain the detainee? Or does his power continue until a review shows that continued detention is no longer appropriate? I think that an examination of the Hardial Singh principles may help to resolve these questions, as they give rise to the need for these reviews. But it is clear that the appellant cannot succeed in his claim by relying solely on those principles.”

[64]His Lordship analysed the policy closely, (it was the Operations Enforcement Manual and Chapter 38 entitled “Detention and Temporary Release”), including the rationale behind the policy provided by the Home Office. At paragraph 18 he said:

“Paragraph 38.1, headed ‘Policy’ refers to the 1998 White Paper ‘Fairer, Faster and Firmer: a Modern Approach to Immigration and Asylum (1998) (Cm 4018)’ in which it was said there was a presumption in favour of temporary admission or release and that detention would most usually be appropriate to effect removal, initially to establish a person's identity or basis of claim or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. …There then follows this important acknowledgement of the significance of the policy in public law: ‘To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy.’ [emphasis added] Under the sub-heading “Use of Detention” these words appear: ‘In all cases detention must be used sparingly, and for the shortest period necessary.’” ‘To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy.’ [emphasis added] ‘In all cases detention must be used sparingly, and for the shortest period necessary.’”

[65]At paragraph 19, Lord Hope referred to a key section in the Guidance:

“Paragraph 38.3 is headed ‘Factors influencing a decision to detain (excluding pre-decision fast track cases)’. It contains the following instructions: ‘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.’”

[66]After dealing with the history of Karadzi’s detention, and noting the admitted failures to provide regular reviews, Lord Hope commented at paragraph 40ff:

“In Mohammed-Holgate v Duke [1984] AC 437 , 443, Lord Diplock said that the Wednesbury principles are applicable not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for trespass by false imprisonment. It may be that not every public law error will justify resort to the common law remedy in every case. But I do not think that it is necessary to show that there was bad faith or that the discretion was exercised for an improper purpose in the present context. Where there is an executive discretion to detain someone without limit of time, the right to liberty demands that the cause of action should be available if the discretion has not been lawfully exercised. In R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 Lord Bridge of Harwich said that the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. The requirements of the 1971 Act and Hardial Singh principles are not the only applicable law with which the Secretary of State must comply. Nadarajah's case shows that lawful authority for an executive power of detention may also be absent when there is a departure from the executive's published policy. ……… 41 …………it seems to me to indicate that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise. 42 That is a proposition which can be applied to this case. The published policy narrowed the power of executive detention by requiring that it be reviewed regularly. This was necessary to meet the objection that, unless it was implemented in accordance with a published policy, the power of executive detention was being applied in a manner that was arbitrary. So it was an abuse of the power for the detainee to be detained without his detention being reviewed at regular intervals. Applying the test proposed by Lord Dyson in Lumba , it was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out: [2011] 2 WLR 671, para 68.”

[67]The question of periodic “reviews” as such, does not arise in the present case. However, Kambadzi has affirmed that the correct approach when considering whether a detention is lawful, is to deal not only with the original reason for detention but also the extent to which the detaining authority has followed its own guidance which is intended to ensure that every detention, however short, is justifiable by reference to risk, the impending nature of removal and the availability of alternative means of complying with the control of immigration. The policy relied upon in the instant case is now set out in a revised chapter 55. (Enforcement Instructions and Guidance) It is not said to be materially different.

[68]Accordingly the approach which I must adopt in deciding whether some or all of the detention from 9th June 2009 is unlawful, and therefore capable of giving rise to a claim for damages involves the following questions: i) Has the Defendant shown that removal was imminent at any time after 9th June? ii) Was the period of detention reasonable in all the circumstances? iii) At any time before the expiry of the period was it apparent to the Defendant that removal could not be affected within a reasonable time? iv) In any event, in accordance with its own accepted policy, has the Defendant shown that it has considered all possible alternatives to detention?

[69]I agree with Miss Chan for the Defendant that the answers to these questions involve both subjective and objective considerations. However one must not lose sight of the fact that the burden of establishing the lawfulness of the detention must lie on the Defendant.

[70]It is accepted on behalf of the Defendant that the detaining authority relied upon chapter 55 (or its predecessor) “Detention and Temporary Release Policy in the Enforcement Instructions and Guidance. This requires the issue of Form IS 91R (Reasons for Detention). Chapter 55.6.3 states inter alia:

“It is therefore important to ensure that (the reasons) are always justified and correctly stated......If any of the reasons for detention given on the form IS91R change, it will be necessary to prepare and serve a new version of the form.”

[71]This appears at page 142 in the bundle and is an important document. It is the closest we get in this case to understanding how the Defendant informed herself of the need to detain the Claimant in this period. The stated reason in the ticked box is:

“c. Your removal from the United Kingdom is imminent.”

[72]On the form, certain factors have also been taken into account. These are not reasons but clearly help inform the decision making process. “2. You have previously failed to comply with conditions of your stay, temporary admission or release.”

[73]Strictly speaking this was true, because the Claimant had breached a condition of her student visa. However, at no time had she ever been granted temporary admission or release. Also:

“7. You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK. ”

[74]Again, strictly speaking, this was true, because if the same existed she would not be an illegal immigrant. However, this factor could not weigh heavily in favour of detention, or all immigrants without status would be detained. Finally:

“8. You have previously failed or refused to leave the UK when required to do so, to leave.”

[75]The Defendant relies on the fact that as at the 3rd April the Claimant had been without any leave, or in-country right of appeal and following the issue of removal directions on 1st April 2009, she had been invited to leave voluntarily. In fact the Claimant was released on 3rd April 2009 after a successful bail application to the Tribunal.

[76]Against this legal and factual background, I analyse the period from 9th June 2009. I bear in mind that every case has to be decided on its own merits. There is no authority which determines how long is “reasonable” or how “imminence” is to be measured. For one immigrant in detention, two to three months may be entirely reasonable, for another only a few days, unreasonable. Further, the fact that judicial review proceedings are to be pursued does not necessarily render detention unreasonable in the light of the number of so many hopeless cases pursued.

[77]On that date (9th June) it is noted that whilst the amended proceedings for judicial review had been filed, they had not been served. This was directed to be done by 16th June. I have not been told that this did not happen, and assuming that service was affected by then, it was reasonable to expect the Claimant’s case to have been reviewed in the light of the new and arguably compelling points raised within a few days. That review, at the very least, would have established that the Notice of 1st April (and accompanying reasons) had incorrectly stated the statutory foundation for the “clearly unfounded claim”, and in view of the potential for the granting of permission on 6th July (the date ordered for hearing) a reasonable assessment would have been that the Claimant had a good prospect of securing permission, and thus significantly extending the time before any removal could be effected validly.

[78]Accordingly, as at 19th June, there was no longer any imminent removal which could have been reasonably expected.

[79]The Claimant was released on 3rd July. It must be presumed that this was because her case had been considered and its arguability accepted. Otherwise one might have expected the Defendant would have waited until the scheduled oral permission hearing on 6th July, when permission might have been contested. No reason has been advanced by Miss Chan on behalf of the Defendant for the release, or the reason why it took so long to consider her case. For instance, no processing problems are relied upon, nor is it said that it would not have been possible to consider the new grounds within a certain time scale. Bearing in mind that the burden of justifying detention rests on the Defendant, and her own guidance enjoins the detaining officers to ensure that the reasons for detaining are “always justified”, in my judgment, on the facts of this case, the Defendant has failed to discharge this burden in relation the 14 day period from 19th June to 4th July.

[80]It is a charitable view that the Claimant’s case for the June detention was considered on the merits rather tardily and shortly before her release. It may not have been considered at all by the Defendant other than by default. Perhaps uncharacteristically, throughout the immigration process, the review of the Claimant’s immigration status and entitlement to bring an asylum claim has been bedevilled by error and oversight. First, the initial incorrect certification subsection under 94(2) instead of 94(1)(A); then the non-service of the notice of refusal prior to the earlier detention; finally the extraordinary failure to challenge within the first tier tribunal proceedings the in-country right of appeal which has been so vehemently challenged within these judicial review proceedings. On either view, in my judgment, the Defendant has failed to establish the lawfulness of the detention for the period identified.

[81]That leaves the much shorter period from 1st April to 3rd April 2009. When the Claimant was released on bail. The Defendant has already accepted that the Claimant’s detention from 17th February 2009 was unlawful. It is suggested that by 1st April the Defendant had put her house in order. The correct notice had now been served. However it is still necessary for the Defendant to justify this additional two day period. In an additional supplementary bundle of documents supplied two days before the start of the hearing, the detention reviews for the period from 17th February 2009 were provided which show regular appraisal of the Claimant’s position in the light of the issued judicial review proceedings. Expedition was to be sought and the fresh claim was being considered.

[82]If this period had represented a lawful detention, then such material may well have satisfied the Hardial Singh principles and demonstrated that the Defendant was following her own guidance. However the Claimant had not been lawfully detained as no notice had ever been served. Accordingly the considerations which might have applied to an otherwise lawful detention were now irrelevant and the justification previously relied upon was now otiose. In the absence of any evidence to show that the removal was now imminent, and other criteria for detention were appropriate (such as the impracticability of temporary admission or release), this additional two day period was unlawful, although not for the technical reason which characterised the earlier longer period. I remind myself that the burden lies on the Defendant and in this respect she has failed to discharge it.

Conclusion

[83]It follows from my findings that the Claimant is entitled to a declaration that she was unlawfully detained from 1st to 3rd April and from 19th June to 3rd July, that is for an additional 16 days to that which is agreed by the Defendant to be unlawful. There will be consequential orders upon my decision including costs and the directions for assessment of quantum. I invite the parties to endeavour to agree such orders. In the event that they cannot be agreed, I shall deal with them following the handing down of this judgment.