“77 No removal while claim for asylum pending (1) While a person’s claim for asylum is pending he may not be— (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (2) In this section— (a) “claim for asylum” means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and (b) a person’s claim is pending until he is given notice of the Secretary of State’s decision on it. … (4) Nothing in this section shall prevent any of the following while a claim for asylum is pending (a) the giving of a direction for the claimant’s removal from the United Kingdom,...” (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (a) “claim for asylum” means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and (b) a person’s claim is pending until he is given notice of the Secretary of State’s decision on it. (a) the giving of a direction for the claimant’s removal from the United Kingdom,...”
“8(1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below— (a)...; or (b)...; or (c) give those owners or agents [of a ship or aircraft] directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the directions to a country or territory so specified, being either— ... (a)...; or (b)...; or (c) give those owners or agents [of a ship or aircraft] directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the directions to a country or territory so specified, being either— ... (iv) a country or territory to which there is reason to believe that he will be admitted. 9(1) Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1).”
“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.”
“A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given”
“There is a difficulty with the current detention provisions which the clause is intended to overcome. The present position under schedule 2 to theImmigration Act 1971 is that a person may be detained if he is liable to examination or removal. In some cases, although there has been compelling evidence that, prima facie, a person falls into one or other of those categories, it has subsequently been determined that that is not the case. Even where a person has not assisted the immigration officer to determine the true facts, such a detention is currently unlawful and as such exposes the immigration service to legal action and damages, even though it may have been effected honestly and properly. Indeed that issue has had to be addressed in a number of cases. We therefore seek to clarify the law so that, where there are reasonable grounds for suspecting that a person is in one of those categories, the immigration service can deal with it properly.”
“ “unaccompanied minor” means unmarried persons below the age of eighteen who arrive in the territory of the Member States unaccompanied by an adult responsible for them whether by law or by custom, and for as long as they are not effectively taken into the care of such a person ... ”
“1. Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible. 2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. …”
“Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor. In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum”
"In Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L5025 February 2003 , pl), where an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, which Member State does the second paragraph of Article 6 make responsible for determining the application for asylum?"
“In the light of all the above considerations, the answer to the question referred is that the second paragraph of Article 6 of Regulation No 343/2003 must be interpreted as meaning that, in circumstances such as those of the main proceedings, where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the ‘Member State responsible’.”
“46. The following 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 reasonable diligence and expedition to effect removal. 47. Principles (ii) and (iii) are conceptually different. 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.”
“As you are aware there are currently three lead cases pending with the Administrative Court due to be heard on 27th -28th September, all of which raise similar issues in relation to removal to Italy. As you will be aware, in May of this year, the Italian government introduced proposed amendments to Italian asylum procedures which would create a presumption that people refused asylum would be force to leave the country to appeal that decision. A number of challenges to those proposed removals were based on that evidence. We are aware that in the case of a number of cases removals have been deferred pending the outcome of these proceedings. In the light of the above, we would request that similarly, removal directions be cancelled until the outcome of the lead cases are known. We wish to put you on notice that we will instigate Judicial Review proceedings but we would seriously question any benefit to be achieved in forcing us to take that route. It is a waste of public funds as if we are forced to do so, it is likely that as in other cases, the proceedings will be stayed in any event pending the outcome of the lead cases. We would suggest therefore that it is much more sensible to await the outcome of the lead cases and to defer removal in this instance. We would be grateful if you could let us know by 12 noon tomorrow by fax whether you agree to cancel the removal directions. … In the event that you do not, and are merely suspending them for a temporary and limited time, we will then initiate Judicial Review proceedings”
“At all times prior to the CJEU’s decision in MA … it was the Secretary of State’s understanding that unaccompanied minors in the position of the Claimant could be removed to a safe Third Country in accordance with the provisions of Council Regulation (EC) No 343/2003 (“Dublin II Regulation”).”
“This, however, does not avail the appellant in the instant case. It is well settled by authority that in the context of arrest there can only be “reasonable cause” for suspecting a person of having committed an offence if what the person making the arrest reasonably believes to be the facts upon the information then available to him would, if they were true, amount in law to the offence for which the arrest is made. He is protected if he has made an honest and reasonable mistake of fact. He is unprotected if he has made a mistake of law, however excusable the mistake might seem to be. The same principle must, in my view, apply where the power of arrest is exercisable in respect of failure to comply with a statutory obligation even though that failure may not necessarily amount to a criminal offence”
"His belief that he had was not due to any mistake of fact. It was solely due to a mistake of law"
“But the issue was presented by the Solicitor General as being primarily one of principle. According to his argument the justification for the detention for the purposes of the tort of false imprisonment had to be determined according to the state of the law at the time of the detention. This argument was developed by analogy with a series of cases [including Percy v Hall] where a person had been detained in obedience to the order of a court which was ex facie lawful at the time when it was made or for breach of a byelaw which was only subsequently found to have been unlawful. My immediate impression was that there was quite a strong case for saying that the decisions reached in these cases could be applied to the position of the governor when he was fulfilling his functions under section 67(1) of the Act. It is his responsibility under the statute to calculate the length of the period of discount in each case where the sentence of imprisonment is subject to a discount, and he must carry out that calculation as required by law. But it seemed to me that he could reasonably say that the justification for what he did lay in the fact that he was following the guidance afforded by decisions of the court in similar cases as to how the calculation should be carried out. The Solicitor General developed his argument along these lines. ..... This argument was presented in a variety of ways. [He then identified a series of points and continued] And there was the byelaw point: the position of the governor was analogous to that of a constable enforcing a byelaw which he had reasonable grounds to think was being breached but was later held to be ultra vires. ..... For his byelaw point the Solicitor General relied on Percy v Hall[1997] QB 924 which concerned the arrest and detention of the plaintiffs by constables on many occasions for breach of various byelaws. The constables were acting in pursuance of powers conferred on them by those byelaws which were in law presumed to be valid and which needed to be enforced in the public interest. Addressing the argument that, assuming the byelaws to have been invalid the constables were nevertheless entitled to rely on the defence of justification, the Court of Appeal held that the defence was available to the constables if they could show that they were acting in the reasonable belief that the plaintiffs were committing an offence under the byelaws for whose assumed invalidity they were not responsible. On further reflection I have reached the view that neither of these lines of authority can be applied by analogy to the position of the governor. ... . It is no answer to a claim based on a tort of strict liability to say that the governor took reasonable care or that he acted in good faith when he made the calculation. Nor can he say, as in the case of the constables who were seeking to enforce the byelaws in the reasonable belief that a byelaw offence was being committed, that he had a lawful justification for doing what he did. His position would have been different if he had been able to show that he was acting throughout within the four corners of an order which had been made by the court for the applicant's detention. The justification for the continued detention would then have been that he was doing what the court had ordered him to do. ... I respectfully agree with Judge LJ's observation in the Court of Appeal[1999] QB 1043 , 1078e-f, that for the governor to escape liability for any extended period of detention on the basis that he was acting honestly or on reasonable grounds analogous to those which apply to arresting police officers would reduce the protection currently provided by the tort of false imprisonment. I can see no justification for limiting the application of the tort in this way. The authorities are at one in treating it as a tort of strict liability. That strikes the right balance between the liberty of the subject and the public interest in the detection and punishment of crime. The defence of justification must be based upon a rigorous application of the principle that the liberty of the subject can be interfered with only upon grounds which a court will uphold as lawful. ...”
“As I have said, it is difficult to see how the court's order could be understood as having any application to the applicant's case other than that it was to be applied to her retrospectively. If ever there was a case where the declaratory theory should be applied it must surely be one where the liberty of the subject is in issue—as it plainly is where the point relates to the entitlement of the subject to be released from custody”
"If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person"
“40 The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time. .... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders in Patterson or upon the Court later publishing its reasons in that case. ... 41 There is, however, another reason to reject the mistake of law contention. The contention turns on distinguishing between cases in which the suspicion held by an officer that a person was an unlawful non-citizen is "reasonable", and those in which that suspicion is not. The distinction was said to be between suspicions which later were found to turn upon some mistake of fact, and those which were found to turn upon a mistake of law. This contention should be rejected. The asserted distinction should not be drawn. 42 First, and foremost, there is nothing in the words of the Act that warrants drawing such a distinction. In particular, contrary to the respondent's submissions, nothing said in Little v The Commonwealth supports that conclusion. 43 ..... [In Little] Dixon J held that the first part of the provision should be read as authorising arrest for doing acts or making omissions that amounted to an offence. Errors about what constituted an offence were to be covered by the later part of the provision. The two distinct elements of the section provided an evident textual basis for reading the provisions in this way. In s 189 there is no such textual basis for reading the provision in the same way as the section under consideration in Little. 44 That there is no textual basis found in the Act for distinguishing between cases of mistake of law and mistake of fact is reason enough to reject the contention. There are, however, further reasons to reject it. 45 The second reason to reject the contention is that there would be many cases under s 189 in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all. ... Especially is that task difficult where, as here, the subject-matter of the relevant suspicion is a statutory status – being an unlawful non-citizen. Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact. 46 Thirdly, to draw such a distinction would generate great uncertainty about the application of an obligation evidently intended to be exercised in aid of the administration of the Act. ... s 189 is evidently intended to have wider application than that, and is to be engaged in cases which include those emerging from the application of s 188 and its provision for requiring a person known or reasonably suspected of being a non-citizen to show evidence of being a lawful non-citizen.”
“106 The distinction between mistakes of law and fact is implicit in the language of s 189 of the Act and is required by a fundamental principle of statutory construction. I have already referred to the statements of Griffith CJ in Nolan v Clifford and Kitto J in Board of Fire Commissioners (NSW) v Ardouin to the effect that a section like s 189 should not be construed so as to interfere with the rights of individuals unless the section evinces a plain intention to do so. The wording of s 189 does not evince an intention to permit an officer to detain a person when, as a matter of law, the person is not an "unlawful non-citizen". ...”
“108 The inability of a person to have cognizance of the legal quality of a matrix of facts also provides a strong reason for concluding that the issue of suspicion in s 189 is concerned with the details of a person's identity and connections to Australia or lack of them and not the legal quality of those facts. In many cases, it is the absence of facts indicating that a person is a citizen or lawful non-citizen that enables the officer to reasonably suspect that the person is an "unlawful non-citizen". If, for example, an officer finds an adult person in the migration zone who cannot speak English, who appears to have no residential address or employment with Australia and who fails, when asked, to produce a visa, the officer may "reasonably suspect" that the person is an "unlawful non-citizen". ... If the facts upon which the officer relies are incapable in law – for whatever reason – of making the person an "unlawful non-citizen", however, the officer cannot reasonably suspect that the person has that status. 109 If the Parliament had intended the officer's power of detention to be exercisable even when the officer had inaccurately, though reasonably, concluded that the facts, of which the officer was aware, were legally sufficient to ground the conclusion that the person is an "unlawful non-citizen", the section would surely have been worded differently. It would empower (and require) officers to detain a person "[i]f an officer is satisfied that a person ... is an unlawful non-citizen". The officer's satisfaction – not his knowledge or reasonable suspicion – would trigger the detention power. In the absence of words such as "is satisfied", the section should not be interpreted to abrogate the common law doctrine of false imprisonment and restrict the liberty of Mr Taylor. 110 Accordingly, s 189 of the Act authorises detention only when the officer has knowledge of, or a reasonable suspicion based on, facts that are sufficient in law to categorise a person as an "unlawful non-citizen". Section 189 does not authorise detention merely because the officer knows facts that the officer believes are sufficient in law to make the person an "unlawful non-citizen". Thus, s 189 does not authorise the detention of a person that an officer suspects to be an "unlawful non-citizen" when the suspicion is grounded in a mistaken assumption as to the legal validity of a Minister's decision to cancel the person's visa. The absence of clear words permitting the detention of persons who are not "unlawful non-citizens" strongly indicates that Parliament did not intend lawful non-citizens to be detained under s 189. ... . Accordingly, s 189 does not apply to an erroneous, even if reasonable, belief on the part of an officer or Minister as to what connections are sufficient to ground Australian citizenship or as to the legal validity of a decision to grant or cancel a visa.”
"Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language." 136 No argument was advanced by the appellants that the tort of false imprisonment had been abrogated, in whole or in part, by the Act. In my view, the provisions of that Act, including s 189, do not meet the strict standard required to do so. This is especially so given the fundamental right of individual liberty that the tort protects. The respondent's claim must therefore be approached by the application of the common law, considered in light of any relevant statutory provisions that might have provided a defence to the appellants against the common law action. 138 This concern is especially significant in respect of a claim for wrongful imprisonment made against members or officers of the Executive Government. It is a fundamental principle of Australia's constitutional law that the executive may not interfere with the liberty of an individual without valid authorisation. ... 139 To similar effect, the House of Lords [in the Brockhill Prison case] has described the tort of false imprisonment as one of the "important constitutional safeguards of the liberty of the subject against the executive”. When a claim for false imprisonment is made in respect of a good faith, but mistaken and unlawful, attempt by an administrative decision-maker to apply the law, courts are forced to choose between two "stark alternatives. Should a claim for damages by the individual who has been wrongly detained be upheld? Or should the fact that the detention was effected bona fide, and in reasonable reliance on the law, be held to justify the defendant's conduct, thereby foreclosing liability? 140 Throughout the common law world, the conclusion consistently reached by courts addressing this question is that, in the absence of statutory provisions that clearly afford an immunity or defence to the administrator, the result must favour the individual whose rights have been violated. ...” ... 142 In light of these principles, it is understandable why, if the respondent can show that the Ministers caused his imprisonment on each occasion, each Minister is obliged to point to a clear lawful justification for his or her actions in order to escape liability. It is also understandable why any asserted lawful justification must be strictly scrutinised by this Court. As explained by the House of Lords... [he then quoted directly from Lord Hope’s speech at 35F set out in paragraph 56 above]"
“166 Their Lordships rejected the prison governor's argument that lawful justification was to be assessed at the time the detention of the prisoner was effected on the basis of an earlier legal understanding. They held that the ultimate judicial decision, which correctly stated the law, operated with retrospective effect to make the applicant's imprisonment during the excessive period unlawful. As such, the applicant was entitled to succeed in her claim for wrongful imprisonment. This was so notwithstanding that the governor was "blameless" in any moral sense. It was so despite the fact that the governor had acted in reliance on the state of the law as earlier expounded by the courts”
“180 A "reasonable suspicion" within the meaning of s 189 does not cover a suspicion which is based on a mistake as to the legal validity of a ministerial decision. In this respect, the distinction between a provision that empowers or authorises a person to detain another (like s 189) and one that provides an immunity from liability, is critical. … In addition, as I explained earlier in these reasons (and as McHugh J also observes), basic principles of statutory construction protective of fundamental rights and freedoms dictate that a section which purports to empower the Executive Government to deprive a person of his or her liberty must be strictly construed. That construction, in this case, denies the officers of the Department, in detaining the respondent pursuant to a mistake of law, a statutory defence to the tort of false imprisonment.”