“(1) An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft… for the purposes of determining (a) whether any of them is or is not a British citizen; and (b) whether if he is not, he may or may not enter the United Kingdom without leave; (c) whether, if he may not (i) he has been given leave which is still in force, (ii) he should be given leave and for what period or on what conditions (if any), or (iii) he should be refused leave; and (d) whether, if he has been given leave which is still in force, his leave should be curtailed….”
“(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival. (2) He may be examined by an immigration officer for the purpose of establishing – (a) Whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled; (b) Whether that leave was obtained as a result of false information given by him or his failure to disclose material facts; or (c) whether there are medical grounds on which that leave should be cancelled ….. (3) He may also be examined by an immigration officer for the purpose of determining whether it would be conducive to the public good for that leave to be cancelled. …. (5) A person examined under this paragraph may be required by the officer or inspector to submit to further examination. …. (7) An immigration officer examining a person under this paragraph may by notice suspend his leave to enter until the examination is completed. (8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter. …. (10) A requirement imposed under sub-paragraph (5) and a notice given under sub-paragraph (7) must be in writing.”
“9.20.1. Entry clearance or permission held by a person may be cancelled where there has been such a change in circumstances since the entry clearance or permission was granted that it should be cancelled. 9.20.2. Entry clearance or permission to enter held by a person on arrival in the UK may be cancelled where the person’s purpose in seeking entry is different from the purpose specified in their entry clearance.”
“In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitations implied by domestic and the European Convention on Human Rights (ECHR) case law. Detention must also be in accordance with the government's stated policy on immigration detention.”
“[The Border Force Officer] told [the Claimant] he had to detain her while enquiries were made. She was not given information about this refused application or asked any questions about it. Instead, she was directed to a seated holding area near the passport control desk while the BFO retained her documents for checks…. No paperwork was given to her to confirm the exercise of the detention power…. Nor was she given formal reasons for the detention. The Claimant checked her phone and noted that her detention commenced at 15.44 (i.e when she was told she was going to be held for further checks).”
“55 The primary targets of the claimants’ challenges are the decisions to detain them. As to what happened on these occasions, there is a dispute between the parties. 56 In R (F) v Surrey County Council[2023] EWHC 980 (Admin) , at [46]-[50], I set out what I consider to be the proper approach to findings of fact in judicial review proceedings, by reference to previous authority: S v Airedale NHS Trust[2002] EWHC 1780 (Admin) ; R (Safeer) v Secretary of State for the Home Department[2018] EWCA Civ 2518 ; R (Singh) v Secretary of State for the Home Department[2018] EWCA Civ 2861 ; and R (Talpada) v Secretary of State for the Home Department[2018] EWCA Civ 841 . At [50], I said this: “(c) There is no absolute rule that the court must accept in full every part of the statement of a witness who has not been cross-examined, whether the statement is adduced for the claimant or the defendant. The court can reject evidence in a witness statement if it ‘cannot be correct’ (Safeer, [16]-[19] and Singh, [16]). That might be so if it is contradicted by ‘undisputed objective evidence… that cannot sensibly be explained away’: S v Airedale, [18]. But there are also examples of courts rejecting evidence given in witness statements as, on balance, inconsistent with other written evidence: see e.g. Talpada, [48]. (d) In some cases, the court may be unable to resolve a conflict of written evidence on a question of primary fact. In that situation, “the court will proceed on the basis that the fact has not been proved”: Talpada, [2]. This will be to the disadvantage of whichever party asserts the fact. That will generally be the claimant, because in judicial review the claimant generally bears the burden of proving all facts necessary to show that the decision challenged is unlawful. Thus, the principle that the defendant’s evidence is to be preferred, save where it ‘cannot be correct’, arises because of the difficulty of satisfying the burden of proof where there is a conflict in written evidence, not because evidence adduced on behalf of a defendant is inherently more likely to be true than that adduced on behalf of a claimant.” 57 Neither party sought to persuade me to depart from this approach.”
“This appeal is concerned with the standards to be applied by a court when it is asked to conduct a judicial review of the contents of a policy document or statement of practice issued by the Government.”
“So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis [in Gillick v West Norfork and Wisbech Area Health Authority[1986] AC 112 ] that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way.”
“41 The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations: see also our judgment in BF (Eritrea)[2021] 1WLR 3967 .”
“46 In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (i e the type of case under consideration in Gillick[1986] AC 112 ); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. In a case of the type described by Rose LJ, where a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions, the context is likely to be such as to bring it within category (iii). The audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the Secretary of State at the head of the department, rather than seeking independent advice of their own. So, read objectively, and depending on the content and form of the policy, it may more readily be interpreted as a comprehensive statement of the relevant legal position and its lawfulness will be assessed on that basis. … 47 In a category (iii) case, it will not usually be incumbent on the person promulgating the policy to go into full detail about how exactly a discretion should be exercised in every case. That would tend to make a policy unwieldy and difficult to follow, thereby undermining its utility as a reasonably clear working tool or set of signposts for caseworkers or officials. Much will depend on the particular context in which it is to be used. A policy may be sufficiently congruent with the law if it identifies broad categories of case which potentially call for more detailed consideration, without particularising precisely how that should be done. This was the approach adopted by Green J in R (Letts) v Lord Chancellor (Equality and Human Rights Commission intervening)[2015] 1WLR 4497 (“Letts”).”
“If it is established that there has in fact been a breach of the duty of fairness in an individual’s case, he is of course entitled to redress for the wrong done to him. It does not matter whether the unfairness was produced by application of a policy or occurred for other reasons. But where the question is whether a policy is unlawful, that issue must be addressed looking at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way.”
“Fifthly, if one moves away from that principled Foundation [i.e the approach in Gillick that was adopted by the Supreme Court in R(A)], there is a risk that a court will be asked to conduct some sort of statistical exercise to see whether there is an unacceptable risk of unfairness, as was urged upon the court in the BF (Eritrea) appeal: see our judgment in BF (Eritrea), paras 35 and 41. But a court is not well equipped to undertake such an analysis based upon experience. In principle, the test for the lawfulness of a policy should be capable of application at the time the policy is promulgated, which will be before any practical experience of how it works from which statistics could be produced. The test for the lawfulness of a policy is not a statistical test but should depend, as the Gillick test does, on a comparison of the law and of what is stated to be the behaviour required if the policy is followed. Both aspects of this test are matters on which the court is competent and has the authority to pronounce.”
“[The powers in paragraph 2A of Schedule 2] are not conditional on the existence of a legal basis for curtailment or cancellation of leave. They exist to enable the officer to ascertain whether such a basis exists or not. The system is configured in such a way that, at the point of detention, the officer will know that there is a warning marker on the system, but not the reason for it. Some element of delay is inherent in checking the back-office system and a short period of detention may be required for this purpose.”
“34 The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements. 35 The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay[1985] AC 318 , 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. In R (Anufrijeva) v Secretary of State for the Home Department[2004] 1AC 604 , para 26, Lord Steyn said: “Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.” 36 Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision. I would endorse the statement made by Stanley Burnton J in R (Salih) v Secretary of State for the Home Department[2003] EWHC 2273 at [52] that it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute. At para 72 of the judgment of the Court of Appeal in the present case, this statement was distinguished on the basis that it was made in the quite different context of the Secretary of State’s decision to withhold from the individuals concerned an internal policy relating to a statutory scheme designed for their benefit. This is not a satisfactory ground of distinction. The terms of a scheme which imposes penalties or other detriments are at least as important as one which confers benefits. As Mr Fordham puts it: why should it be impermissible to keep secret a policy of compensating those who have been unlawfully detained, but permissible to keep secret a policy which prescribes the criteria for their detention in the first place? 37 There was a real need to publish the detention policies in the present context. As Mr Husain points out, the Cullen policies provided that certain non-serious offenders could be considered for release. The failure to publish these policies meant that individuals who may have been wrongly assessed as having committed a crime that rendered them ineligible for release would remain detained, when in fact, had the policy been published, representations could have been made that they had a case for release. 38 The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”
“74 The fact that the policy is unpublished supplies a further reason why it is unlawful. The main reason why the unpublished policy in Lumba was unlawful was because it was at odds with the Secretary of State’s published policy. However, the reasoning of Lord Dyson also supports the wider proposition that, where statute confers a broad power of detention on the executive, the rule of law calls for a transparent statement of the circumstances in which the power will be exercised: see at [34]. One benefit of publication is that the individual to whom the policy is applied can challenge an adverse decision: see at [36]. This is likely to be of greater relevance to the longer-term powers of detention at issue in Lumba than in the present case, though even here the evidence discloses some cases where lawyers were involved in challenging detentions lasting several hours. 75 There is another advantage to the publication of policy, which is vividly illustrated by the facts of these cases. People who have to interpret and apply the law sometimes make legal errors. This of course applies to lawyers and judges, but also to those who formulate and draft policy. Especially where the policy concerns the exercise of powers of detention, there is a powerful public interest in the early identification of any errors, so as to avoid unlawful detention and minimise the liability of the detaining authority. If such a policy is not published, there is a danger that a practice will develop, which has not been transparently avowed and which can only be discerned by piecing together the accounts given by a large number of individuals to their respective lawyers. The result may be that large numbers of people are unlawfully detained before the practice can be identified and the illegality exposed. 76 That is what seems to have happened here. The practice of detaining returning residents for examination in relation to NHS debts appears to have been identified through discussion between solicitors and immigration practitioners, each representing no more than a few clients. The policy was only disclosed in the course of the litigation. Once it was disclosed, and submissions made about it, the errors in the policy were recognised by the Secretary of State and the policy was withdrawn or amended. By that time, however, it is likely that it had been applied to a very large number of people. It would have been much better for all concerned if the policy had been published and its illegality recognised earlier. 77 I should add that it is well established that there is no legal obligation to publish a policy, even one relating to the exercise of administrative powers of detention, where there are compelling national security or other public interest reasons against publication: see Lumba, [38]. As I have indicated, Mr Chapman submitted in the course of argument that the Secretary of State had determined that publication would be contrary to the public interest here. If that submission were to be seriously maintained, it would be necessary to consider carefully the evidence about the circumstances in which the decision was made and the reasons for it. But, as Mr Chapman later conceded, there was no such evidence in any of the witness statements adduced by the Secretary of State, or otherwise. Indeed, the evidence did not even attest to the fact that such a determination had been made. Courts cannot proceed on the basis of bare submissions that are not supported by evidence. Moreover, as Mr Squires pointed out, it is difficult to see how there could have been a compelling reason for non-publication of the policy, given that the Secretary of State has undertaken to publish the new policy once that has been formulated.”
“1.Everyone has the right to respect for his private and family life, his home and his correspondence. 2There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“The Court recalls that art.5(1) is not concerned with mere restrictions on liberty of movement; such restrictions are governed by art.2 of Protocol No.4, which has not been ratified by the United Kingdom. In order to determine whether someone has been “deprived of his liberty” within the meaning of art.5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of art.5 depends.”
“39. The Court further points out that Article 5 § 1 may apply to deprivations of liberty of a very short length, for example where applicants were stopped for a search which did not exceed thirty minutes (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 57, ECHR 2010 (extracts)) or the length of time during which the applicant was held at the police station did not exceed forty-five minutes (see Shimovolos v. Russia, no. 30194/09, §§ 48-50,21 June 2011 ). However, the Court observes that in the present case the applicant was detained in circumstances which were due to intervention by the police. In the instant case the applicant was stopped by border officials following passport control in an international airport because his name appeared under the status “to be stopped” in the database of the SBS. 40. The Court reiterates in this connection that the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see Austin and Others, cited above, § 59). An air traveller may be seen in this regard as consenting to a series of security checks by choosing to travel by plane (see Gillan and Quinton, cited above, § 64). In particular, these security checks may include having his identity papers checked or having his baggage searched, and also waiting for further enquiries to be carried out to establish his identity or determine that he does not represent a security risk for the flight. 41. The Court accepts in this respect that where a passenger has been stopped by border officials during border control in an airport in order to clarify his situation and where this detention has not exceeded the time strictly necessary to comply with relevant formalities, no issue arises underArticle 5 of the Convention .”
“The Court considers that in drawing the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of asylum seekers, its approach should be practical and realistic, having regard to the present-day conditions and challenges. It is important in particular to recognise the states’ right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration.”
“The right of states to control the entry of foreigners into their territory necessarily implies that admission authorisation may be conditional on compliance with relevant requirements. Therefore, absent other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter cannot be described as deprivation of liberty imputable to the state, since in such cases the state authorities have undertaken vis-à-vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications.”
“The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual’s art.8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under s.44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.”
“(1)A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”