B & Ors v The Home Office [2016] EWHC 1080 (QB)

Case No HQ14X03733[2016] EWHC 1080 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 May 2016
Before
MR JUSTICE HICKINBOTTOM
Between
BClaimantsXClaimantY (by her Mother and Litigation Friend B)ClaimantZ (by his Mother and Litigation Friend B)ClaimantTHE HOME OFFICEDefendant
Victoria Laughton (instructed by Duncan Lewis) for ClaimantsSusan Chan (instructed by Government Legal Department for DefendantHearing Hearing dates: 4-5 May 2016
JudgmentMr Justice Hickinbottom :Introduction
[1]A and B are nationals of the Republic of the Congo (i.e. Congo-Brazzaville). They are married and have three children, X, Y and Z.[2]A, B and X arrived in the United Kingdom from the Congo at various times, and Y and Z were born here. In 2000, they were granted exceptional leave to remain for four years; and then, in late 2004, A made an application for indefinite leave to remain, with B, X, Y and Z as his dependents.[3]In 2007, prior to that application having been determined, A was convicted of various offences of dishonesty and sentenced to a term of imprisonment. Whilst serving that sentence, the UK Border Agency (“the UKBA”), acting on behalf of the Secretary of State, served A and each family member with both a refusal of the application for indefinite leave to remain and a notice of intention to deport. Various challenges to those notices failed, appeal rights being exhausted by July 2008.[4]In the meantime, in March 2008, A completed the custodial part of his sentence, and he was moved from prison to administrative detention pending removal.[5]On 12 September 2008, immigration officers attended the home of B and her children, without notice, and detained them pending deportation. They were served with deportation orders, and detained in Yarl’s Wood Immigration Detention Centre (“Yarl’s Wood IDC”), to where A was also moved.[6]It was intended to remove the family to the Congo on 18 September 2008; but the Claimants issued an application for judicial review that day, and the removal directions (“RDs”) were cancelled. As a result of the ongoing judicial review, B, X, Y and Z were released from Yarl’s Wood IDC on 7 November 2008.[7]However, the judicial review was unsuccessful – the court found it to be unarguable, and therefore refused permission to proceed with it – and, after its conclusion, on 19 December 2008 B, X, Y and Z were re-detained. Thereafter, several sets of RDs were set; but none was effective. On one occasion, it is recorded that A, B and their family were not removed because of their own behaviour during attempts to remove them. However, on other occasions, removal failed for a reason that was clearly not their fault (e.g. escorts were not available or transport failed to appear). Over this period, X’s general behaviour and mood started to deteriorate, and he exhibited some symptoms of depression.[8]On 18 February 2009, B and her children were again released from detention. Later, A was also released on bail.[9]In September 2009, RDs were set on the basis that the family would self check in for the removal flight; but they did not do so. A was detained again, and, in October and November 2009, two further attempts were made to remove him, alone; but they were unsuccessful because of his obstructive and aggressive behaviour on the first occasion, and the issue of a further claim for judicial review on the second.[10]On 16 May 2010, before that further judicial review had been concluded, Y attained the age of 10 years; and, because she had been born in the UK, she was then entitled to British citizenship, and thus entitled to remain in the UK. As a result, her family – upon whom she was, and still is, effectively dependent – also could not be removed. On 7 July 2011, they were all granted discretionary leave to remain.[11]In this action, B, X, Y and Z claim declarations and damages for false imprisonment, by having been unlawfully detained by the Secretary of State for two periods, namely 12 September to 7 November 2008 (“the first period of detention”) and 19 December 2008 to 18 February 2009 (“the second period of detention”).[12]The tort of false imprisonment has two elements: the fact of detention, and the absence of lawful authority for that detention. In this case, it is not in dispute that the Claimants were detained for those two periods. The only matter in issue is whether the Secretary of State had any lawful authority for detaining them.[13]The primary contention of Ms Laughton for the Claimants is that each of the decisions to detain the Claimants was unlawful, as being contrary to the Secretary of State’s own policy on the detention of children then in force; and thus the whole of each period of detention was unlawful. However, alternatively, she submits that the periods of detention were unreasonably long; and, even if initially lawful, the Secretary of State did not act with reasonable diligence and expedition and there came a point in each period when it was apparent that the Claimants would not be removed within a reasonable time. The detention thus became unlawful as contravening both the Secretary of State’s own policy, and the well-known principles of Hardial Singh (so-called because they are principally derived from the judgment of Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 as restated by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 (“Lumba”)).[14]The Secretary of State, through Ms Chan, denies that she has breached any relevant policy; but, if there was a breach, then only nominal damages would be appropriate because such breach made no difference to the decision to detain or the period of detention. She also denies that the Hardial Singh principles were breached because, throughout the periods of detention, there was always a prospect of deporting the Claimants within a reasonable time.[15]During the course of the trial, and having heard all of the relevant evidence, I indicated that I would give judgment on issues of liability (including making findings of fact in relation to the consequences of any breaches found), before hearing any submissions on quantum. This is the reserved judgment on liability.

The Law

[16]Article 5 of the European Convention on Human Rights (“the ECHR”), effectively implemented by section 6 of the Human Rights Act 1998 (which prohibits public authorities acting incompatibly with Convention rights), so far as relevant to this case, provides:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
[17]In respect of children, article 37(b) of the United Nations Convention on the Rights of the Child (“the UNCRC”) provides:
“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate time.”
That reflects the more general obligation set out in article 3 of the UNCRC, that, in all actions concerning children undertaken by administrative authorities:
“… the best interests of the child shall be a primary consideration.”
[18]The United Kingdom is a party to the UNCRC, but it has not been incorporated into domestic law in England (cf the position now in Wales, where the UNCRC is given further effect by the Rights of Children and Young Persons (Wales) Measure 2011 (2011 nawm 2)). Indeed, the United Kingdom initially entered a reservation in respect of its obligations so far as the right to enter, stay in and depart the United Kingdom is concerned. That reservation was lifted on 18 November 2008 – during the course of the relevant events of this claim – as a precursor to section 55 of the Borders, Citizenship and Immigration Act 2009 which, as from 2 November 2009, required the Secretary of State to make arrangements for ensuring that her immigration and asylum functions were discharged “having regard to the need to safeguard and promote the welfare of children…”.[19]However, for the purposes of this claim, Ms Chan conceded that, even in respect of the period prior to the lifting of the reservation, article 5 of the ECHR had to be read in the light of articles 3 and 37(b) of the UNCRC; so that, in practice, even before November 2008, a child could only be detained pending deportation or other mode of removal from the United Kingdom “as a measure of last resort and for the shortest appropriate period of time”. In my view, that concession was well made (see, e.g., R (S, C and D) v Secretary of State for the Home Department [2007] EWHC 1654 (Admin) at [41] and [49] per Wyn Williams J, and R (Suppiah & Others) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) at [148] per Wyn Williams J). Those articles therefore inform the proper exercise of the Secretary of State’s statutory power to detain pending removal. Furthermore, as we shall see, even prior to November 2008, the Secretary of State’s policy with regard to the detention of children reflected the UNCRC provisions.[20]So far as domestic provisions are concerned, paragraph 2(2) and (3) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”) provides:
“(2) Where notice has been given to a person in accordance with regulations… of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph… (2) above when the order is made, shall continue to be detained unlesshe is released on bail orthe Secretary of State directs otherwise).”
[21]These provisions afford the Secretary of State a power to detain pending deportation; but, as Lord Dyson emphasised in Lumba (at [34]): “[I]mmigration detention powers need to be transparently identified through formulated policy statements”; a proposition very recently quoted with approval and reinforced by Lord Wilson, giving the judgment of the Supreme Court, in R (O) v Secretary of State for the Home Department [2016] UKSC 19.[22]The Secretary of State’s current policy is to be found in her “Enforcement Instructions and Guidance” (“EIG”), the provisions for “Detention and Temporary Release” being found in Chapter 55. It is there stressed that “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 stated policy” (paragraph 55.1.1). There is a general presumption in favour of temporary admission or release; each case is to be considered on its individual merits; “all reasonable alternatives to detention” have to be considered before detention is authorised; and, where required, detention is to be used for the shortest period necessary (paragraphs 55.1.1 and 55.3).[23]However, in the case of foreign nationals liable to deportation (who are dealt with by a separate arm of the UKBA, namely the Criminal Casework Directorate (“the CCD”)), the guidance is substantially different. Notably, there is no presumption in favour of temporary admission or release. Paragraphs 55.3.2.4 and 55.3.2.5 provide (all emphasis in the original):
“Imminence 55.3.2.4 In all cases, caseworkers should consider on an individual basis whether removal is imminent. If removal is imminent, then detention or continued detention will usually be appropriate. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks. Cases where removal is not imminent due to delays in the travel documentation process in the country concerned may also be considered for release on restrictions. However, where the FNP [foreign national person] is frustrating removal by not co-operating with the documentation process, and where that is a significant barrier to removal, these are factors weighing strongly against release…. Risk of absconding 55.3.2.5 If removal is not imminent, the caseworker should consider the risk of absconding. Where the person has been convicted of a more serious offence appearing on this list, then this may indicate a high risk of absconding. An assessment of the risk of absconding will also include consideration of previous failures to comply with temporary release or bail. Individuals with a long history of failing to comply with immigration control or who have made a determined attempt to breach the UK’s immigration laws would normally be assessed as being unlikely to comply with the terms of release on restrictions. Examples of this would include multiple attempts to abscond or the breach of previous conditions, and attempts to frustrate removal (not including the exercise of appeal rights). Also relevant is where the person’s behaviour in prison or IRC (if known) has given cause for concern. The person’s family ties in the UK and their expectations about the outcome of the case should also be considered. If there is an above average risk of absconding, detention or continued detention will usually be appropriate…”
.

Risk of absconding

[24]The Secretary of State’s particular policy on the detention of families is set out at paragraph 55.9.4, which provides:
“Plans for the ensured return of families with children under the age of 18, including criminal casework cases, should follow the ensured returns process set out in Chapter 45, including referral to the Family Returns Panel for advice. The options for ensured returns include, as a last resort, the use of pre-departure accommodation (see 45b). Stays at pre-departure accommodation are limited to a normal maximum of 72 hours but may, in exceptional circumstances and subject to Ministerial authority, be extended up to a total of seven days…”
. Although there is provision later in the same paragraph for detention of a family – rather than the provision of simply pre-departure accommodation – it is made clear that detention should be reserved for “rare occasions”; and in any event the same time limits apply.[25]Therefore, under the current policy,(i) pre-departure accommodation or detention for a family with children is reserved as a last resort to ensure removal, and(ii) where such accommodation or detention is required, a child can normally be accommodated or detained for no more than 72 hours and in any event no more than seven days.[26]However, the current policy has only been in effect since 2015, and the Secretary of State’s policy towards detaining children has changed significantly over time. The Secretary of State was, of course, required to comply with her own policy as it was from time-to-time.[27]At the relevant time for the purposes of this claim (i.e. 2008-9), the policy incorporated no “normal” and/or absolute time limits for the detention of children, as it does now. Paragraph 55.9.4 read as follows:
“The decision to detain an entire family should always be taken with due regard to article 8 of the ECHR.... Families, including those with children, can be detained on the same footing as all other persons liable to detention. This means that families must be detained in line with the general detention criteria (see 55.3). Form IS91 must be issued for each person detained including for each minor. Detention of an entire family must be justified in all circumstances and, as in any non-CCD case, there will continue to be a presumption in favour of granting temporary release. In CCD cases, the welfare of a dependent child must be taken carefully into account when considering whether detention of that child is reasonable and appropriate, along with any other factors. Detention must be authorised by an Inspector/SEO at whatever stage of the process it is considered necessary and, although it should only last as long as necessary, it is not subject to a particular time limit. .... As a matter of policy we should aim to keep the family as a single unit. However, it will be appropriate to separate a child from its parents if there is evidence that separation is in the best interest of the child. The local authority’s social services department will make this decision. As long as the child is taken into care in accordance with the law, and following a decision of a competent authority, article 8 of the ECHR will not be breached.... No families should be detained simply because suitable accommodation is available. Detained children are subject to enhanced detention reviews, and the Family Detention Unit reviews the detention of children at days 7, 10, 14 and every seven days thereafter. The Family Detention Unit will also seek weekly authorisation to continue detention from the Minister for those families with children who remain in detention beyond 28 days.”
[28]In respect of families, Chapter 55 was supplemented by Chapter 45.[29]Paragraph 45.1.5 stated that:
“A child’s welfare [in addition to the assessment of the family as a whole] should be assessed prior to detention, during the detention process and during continued detention.”
[30]Paragraph 45.1.1 provided (again, all emphasis in the original):
“… The Family Welfare Form… will assist in job-specific risk assessment. The Family Welfare Form (“FWF”) consists of three parts. The first part to be completed by the case owner will include information on the health, welfare and education of each member of the family. The second part will include all operational planning. As detention is to be used only when it is necessary, it is important that in this part of the form our consideration of every alternative to detention and why it is not suitable must be recorded. The following options must be considered: • VARRP • Self check in removal directions • Detention at reporting centre • Detention of head of household but see 45.3.3 for Splitting families • Visit to residential address to detain the whole family The reasons for discounting each option and the reasons for selecting the chosen method of removal must be noted on the FWF… The third part of the FWF will be completed at the removal centre. Any health/welfare concerns and any behaviour which may pose a risk should be noted. This will assist in informing any future detention visit should the family be released.”
The importance of the Family Welfare Form is there emphasised: it requires an exercise to be performed in respect of each minor family member, including consideration of alternatives to detention (see R (N) v Secretary of State for the Home Department [2012] EWHC 1031 (Admin) (“N”) at [22]). • VARRP • Self check in removal directions • Detention at reporting centre • Detention of head of household but see 45.3.3 for Splitting families • Visit to residential address to detain the whole family[31]Paragraph 45.3.3, headed “Detention and Removal of Incomplete Families and Splitting Families”, provided that:
“Whenever these powers are used to detain a family, the principle, underpinned by article 8 of the [ECHR], is that the members of the family remain together. Therefore splitting families for detention and removal purposes is also a very serious decision which must be authorised at a senior level within the [UKBA].”
The paragraph then went on to consider a series of stages at which a decision to split a family may have to be made, e.g. at point of arrest, in detention, and at the removal stage.[32]Whilst not imposing the strict time limits now in place, this policy clearly reflected the international obligations imposed by article 37(b) of the UNCRC; and was certainly consistent with it (see R (FM) v Secretary of State for the Home Department [2011] EWCA Civ 807 at [69] per Pitchford LJ). Like article 37(b), the policy, in practice, required all reasonable alternatives to be considered – and sensibly discounted – before children were detained as part of a family (ibid; see also S at [61] per Wyn Williams J, and N at [16] per Nicholas Paines QC sitting as a Deputy High Court Judge to the same effect); and, if it was determined that detention was necessary, then it had to be for the shortest possible period.[33]The primary case put forward by Ms Laughton is that, in detaining the Claimants at all (or, alternatively, for the length of time they were in fact detained), the Secretary of State breached her own then-current policy and thus acted unlawfully. It is well-established that where, in detaining (or continuing to detain) a person, the Secretary of State fails to follow her own policy, unless there is good reason for that departure, that is a public law error rendering the detention unlawful (see, e.g., Lumba at [26] per Lord Dyson).[34]However, Ms Laughton relied upon a second basis of claim, namely that, in detaining the Claimants for as long as she did, the Secretary of State breached the principles in Hardial Singh. Ms Laughton accepted that, in any particular case, where there is a breach of policy as to the length of time a person is detained pending deportation, that is likely also to breach the principles of Hardial Singh. That is perhaps particularly so in relation to the detention of children, where article 37(b) of the UNCRC informs the relevant policy and also provides the glass through which the reasonableness of the period of detention must be viewed under Hardial Singh. However, because the approach to the latter incorporates a greater objective element (see, e.g., R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at [62] per Toulson LJ (as he then was)), Ms Laughton submitted the scope of the two are not necessarily coterminous. Therefore, in addition to the Secretary of State’s applicable policy, it is necessary to consider the principles in respect of the lawfulness of administrative detention under Schedule 3 to the 1971 Act.[35]Those principles are fortunately well-established, and uncontroversial. I was referred to my own formulation of them as set out in R (Mahfoud) v Secretary of State for the Home Department [2010] EWHC 2057 at [6], as a good starting point:
“(i) The power of detention exists for the purpose of deporting the relevant person (‘the deportee’). (ii) The power exists until deportation is effected: but it can only be exercised to detain the deportee for a period that is reasonable in all the circumstances. (iii) Whilst in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the deportee within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to deport the deportee, and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under article 5, and the deportee must be released immediately. (iv) There is no red line, in terms of months or years, applicable to all cases, beyond which a reasonable time for detention becomes unreasonable. What is a “reasonable time” will depend upon the circumstances of a particular case, taking into account all relevant factors. (v) Those factors include: (a) The extent to which any delay is being or has been caused by the deportee’s own lack of cooperation in, for example, obtaining an emergency travel document (“ETD”) from his country of origin. (b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order). (c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur. (d) The effect of detention on the claimant, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour. (e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD. That list of factors is not, of course, exhaustive. (vi) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative. There is no “trump card”
. Therefore, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which article 5 requires a deportee’s release. (vii) The burden of showing that detention is lawful lies upon the Secretary of State.” (a) The extent to which any delay is being or has been caused by the deportee’s own lack of cooperation in, for example, obtaining an emergency travel document (“ETD”) from his country of origin. (b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order). (c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur. (d) The effect of detention on the claimant, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour. (e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD.[36]In respect of the particular claim before me, three further points can be made.[37]First, in considering the reasonableness (and thus lawfulness) of a period of detention, this court can only have regard to the facts known to the Secretary of State at the time, and cannot have regard to matters that subsequently occurred (see, e.g., Fardous v Secretary of State for the Home Department [2015] EWCA 931 at [42] per Lord Thomas of Cwmgiedd CJ).[38]Second, when considering the reasonableness of the length of detention, a previous period of detention is or may be relevant (R (MC (Algeria)) v Secretary of State for the Home Department [2010] EWCA Civ 347 at [34] per Sullivan LJ).[39]Third, another factor not specifically referred to in (v), but which will or may be relevant, is of course the age of the detainee. In particular, the courts have recognised that, whilst the reasonableness of a period of detention is always a question of fact to be decided on the evidence in a particular case, “where children are detained the Secretary of State is under a duty to act with particular despatch” (I and Others v Secretary of State for the Home Department [2010] EWCA Civ 727 (“I”) at [38] per Munby LJ). Therefore, whilst the mere commencement of judicial review proceedings by a minor detainee does not in itself require the Secretary of State to revoke RDs or release the child (see I at [39]) – and she is entitled to some time to explore the timescale for the proceedings (see I at [45]) – if and when it reasonably appears that the judicial review proceedings cannot or will not be expedited, it is highly likely, if not inevitable, that continued detention of the child will be unlawful. As a proposition, that appears to have been common ground in N, in which the Deputy Judge found that “acting with particular despatch” required the Secretary of State to release the relevant family within 48 hours of the decision being reached that the judicial review – issued to challenge the RDs – could not be expedited. The Secretary of State was, thereafter, in breach of duty, and the continuing detention was unlawful.[40]Whilst references to other cases are necessarily of limited value in an area which is so fact-specific, Ms Laughton referred me to a number of cases in which relatively short periods of detention of a child had been held to be unlawful, for example: i) In I, the last seven days of 19 days’ detention were found to be unlawful, because the Secretary of State had failed to deal with a judicial review with sufficient despatch, not lodging an Acknowledgment of Service until 14 days after service of the proceedings on her. That finding underscores the need for particular urgency, CPR rule 54.8(2)(a) generally giving a defendant 21 days in which to respond to a claim for judicial review. ii) In S, it was held that the first 14 days detention of a child were lawful – because they covered the period involved in the fast-track procedure – but detention thereafter was unlawful. iii) In R (Nukajam) v Secretary of State for the Home Department [2010] EWHC 20 (Admin), it was found that it had been unlawful to detain a child in circumstances in which the Secretary of State appreciated that malaria prophylaxis – required for removal to Cameroon – would take three weeks to become established. Although of course the period of detention is only one factor to be considered, Ms Laughton emphasised that in none of the reported cases concerning the detention of a child has a period of anything like the length of detention in this case been found to have been reasonable and thus lawful.[41]Citing Lord Dyson’s judgment in Lumba at [71], Ms Laughton submitted that “the causation test has no place in the tort of false imprisonment” (paragraph 17 of her skeleton argument). That is true: but the proposition has its limits. Lord Dyson explained the position in the paragraph Ms Laughton cites:
“… Where the power [to detain] has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.”
Therefore, where, for example, in deciding to detain a person the Secretary of State fails to comply with her own policy, the decision to detain is unlawful and thus the detention is unlawful. It is no less unlawful if the court finds that, had she acted in compliance with her policy, she would have detained the person in any event. However, although that hypothetical is not relevant to breach, it is relevant to relief, because it is open to the court (e.g.) to grant nominal damages if the detainee has suffered no loss as a result of the breach as he would have been detained even if the Secretary of State had acted lawfully.[42]The proper approach to this exercise was considered in R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 especially at [20]-[24], and in N at [21]-[22]. Those cases held that(i) the burden of showing that, had she acted as she ought to have done, the Secretary of State would have still decided to detain (or continue to detain) the relevant individual, lies on the Secretary of State; and(ii) although some of the cases refer to “inevitability”, the relevant standard of proof is on the balance of probabilities. Thus, in N, as I have already described (see paragraph 39 above), the Deputy Judge found that, had the Secretary of State acted in accordance with her duty of particular despatch (as, he found, in fact she had not), she would have been required to have released the detained family within 48 hours of the decision being reached that the judicial review (which was holding up removal) could not be expedited.

The Facts

[43]Given the nature of the claim, it is necessary to consider the relevant events in some detail.[44]A and B were born in the Congo in 1966 and 1969 respectively. They married in a traditional ceremony and, on 23 October 1994, their first child, X, was born.[45]Shortly afterwards, A left for the UK, alone. He arrived on 23 March 1995, and immediately sought asylum. On 5 February 1999, B arrived in the United Kingdom, and associated herself with A’s (still outstanding) asylum application, as his dependent. On 16 May 2000, their second child, Y, was born. On 11 December 2000, A’s asylum claim was refused, but he, B and Y were granted four years’ exceptional leave to remain, expiring on 11 December 2004. Meanwhile, on 19 September 2003, X (then aged 8) arrived in the United Kingdom from the Congo, via Paris. On 1 October 2003, he applied for leave to remain, as a dependent of A, in line with the rest of A’s family. On 11 November 2004, A applied for indefinite leave to remain, with B, X and Y as his dependents. On 5 October 2006, a third child, Z, was born to A and B.[46]Therefore, at the end of 2006, A, B, X, Y and Z were all living as a family in the United Kingdom; and there was an outstanding application by A for indefinite leave to remain, with B, X, Y and Z as his dependents, their claim for leave being dependent upon his.[47]However, before that application was determined, on 5 January 2007 at Kingston-upon-Thames Crown Court, A was convicted of two counts of theft, involving the theft of 35 parcels from the Royal Mail by which he was employed. He was sentenced to an aggregate of six months’ imprisonment, suspended for two years, with substantial unpaid work and supervision requirements. Then, on 12 July 2007 at Blackfriars Crown Court, A was convicted of conspiracy to defraud, involving stealing from the post and encashing a substantial number of benefits cheques to the value of over £60,000. A was sentenced to 18 months’ immediate imprisonment.[48]On 3 January 2008, the UKBA notified A of the refusal of his application for indefinite leave to remain, and of the intention to deport him. At the same time, letters were sent to his family members, refusing their parasitic applications for leave, and indicating an intention to deport each of them with him. On 17 January 2008, through solicitors, B appealed against the deportation order, but that appeal was refused by the relevant tribunal and then, on review, by the High Court. A and his family members were appeal rights exhausted by 4 July 2008.[49]In the meantime, deportation orders in respect of A and each of his family members were made by the Secretary of State on 19 March 2008, but not then served. Each authorised the detention of the subject.[50]An internal email from the relevant CCD case worker (Steven Burgess) to a member of the Family Team (Alex Jayes) dated 22 May 2008 – three days after the deportation orders were made and, of course, well before B and her children were in fact detained – stated:
“We require for the subject’s spouse [B] and her 3 children to be detained so they can be served with the signed Deportation Orders against them. Whilst in detention we require the family complete BIO-DATA forms and have photographs taken to facilitate their removal. When Bio-Data forms have been completed we can arrange for [RDs] to be set for the family. Can you please let me know what documents you will require to detain the family and any other details you may require…”
. That is reinforced by an action note dated 7 July 2008:
“Need to contact family team…. Need to detain the mother and 3 kids. Then complete bio-data and have photos taken for EU Letters.”
[51]In the meantime, the deportation orders were not served, even on A. It is recorded (e.g. in the Detention Review Form dated 5 June 2008) that A had not yet been served with his order “in case his [sic] tips off his family and they abscond” (see also Detention Review Form dated 7 July 2008 to similar effect).[52]Mr Jayes responded to the 22 May email on 7 July, asking for the matter to be posted to the UKBA team based in premises known as Becket House which dealt with family removals involving children (“the Becket House Family Team”). On 10 July, authorisation of a home visit to detain B and her children was refused by the Team’s Assistant Director “until the case had been clarified [by Mr Jayes] to him in more detail”.[53]On 28 August 2008, on behalf of A and his family, solicitors (Duncan Lewis) lodged representations with the European Court of Human Rights, on the basis that all domestic remedies had been exhausted.[54]There is then a dearth of original UKBA documents – I understand they are no longer available – the only record of what happened being set out in A’s Detention Review Form dated 2 September 2008. There is no reason to doubt its accuracy. It states:
“An email was received from Alex Jayes on 5 August 2008. He advised that he would start the case on 6 August 2008 and try and conduct a home visit ASAP. As of Tuesday 26 August 2008, there had been no notes placed on CID relating to the home visit. Therefore, email sent to Alex for update. Email received from Alex on 29 August 2008. They were looking to conduct a visit in the next two weeks. Again email received from Alex on 30 August 2008. A warrant will be obtained on 31 August 2008 (Sunday). Call received from Alex on Monday 1 September 2008. The visit to [B’s] family address will be conducted on 12 September 2008. Alex has also advised that if CCD... were ok with the idea – his team will arrange all of the flight details – RDs back to Congo (Brazzaville) are to be set for within 2 weeks of 12 September 2008. I have agreed that his team can arrange for the families [sic] removal. Barriers 1) The serving of signed DOs to the… family – the Dos have been signed and are on file. The subject was served with his DO on 25 June 2008. However, his family have not been served yet as they may abscond. The Family Team in Becket House will be dealing with this. The family are to be detained on 12 September 2008. 2) Detaining of [the] family. 3) Setting RDs… Authority to maintain detention given Comments I endorse the above proposal. Removal is imminent, and reliant only on the detention of the family. As this is scheduled to take place on 12 September [sic], maintained detention is reasonable and proportionate. Detention is necessary to effect removal of this family group, which should take place imminently. Please continue to liaise with Becket House to ensure that the family are detained as soon as possible.”
Barriers Authority to maintain detention given

Comments

[55]On 12 September 2008, a Form IS91R (Notice to Detainee: Reasons for Detention and Bail Rights) was completed in respect of B, indicating four reasons for detention, namely(i) her removal from the United Kingdom was imminent,(ii) her release was not conducive to the public good,(iii) she did not have close enough ties to make it likely that she would stay in one place and(iv) she was excluded from the United Kingdom at the personal direction of the Secretary of State (i.e. by virtue of the deportation order). The various potential reasons are set out in the standard tick-box form, with a direction to the immigration officer completing the form:
“Tick all boxes that apply”
(emphasis in the original). The box on the form by the reason, “You are likely to abscond if given temporary admission or release”, was not ticked.[56]Immigration officers duly attended the home of B and her family at about 5.30am on 12 September 2008, and detained them. At that time, X was 13, Y was eight, and Z was one year of age. In her statement, B describes the visit, understandably, as a “raid”: it involved at least six officers unexpectedly attending and entering her home very early in the morning. It was, again understandably, a traumatic event for B and her children.[57]They were duly served with deportation notices, Forms IS91R and RDs for removal on 18 September 2008. They were reunited with A at Yarl’s Wood IDC.[58]The case owner completed a Family Welfare Form on 12 September 2008. In the section “Pre-detention planning” there is a list of points which (it is said on the form itself) should have been considered and reasons noted in full for the decisions taken, which include:
“– is detention essential – has SCI [i.e. self check in] been considered – has detention for head of household and SCI for the family been considered…”
[59]In response to this check list, it is stated: “Detention justified because main applicant is not reporting and is subject to DO [i.e. deportation order]. Head of household currently detained in single detention in Oakington. Family detained pending removal. Detention scheduled 12/09/08 – 05:30 – Harm case with DO to be served detention is only option…”.[60]The form went on to record that B became upset and collapsed on the floor in her home on initial detention, but was calm on arrival at Becket House. The family “remained calm but a little upset whilst in detention”. The process was explained to B and X, who appeared to understand what was happening. A full medical review of X noted no concerns; and a medical examination the following day (13 September) records him as being “fit and healthy”.[61]On 15 September, Duncan Lewis forwarded further representations to the UKBA in the form of a letter before action, submitting that the removal of A and his family would be contrary to article 8 of the ECHR, and the removal of Y would be contrary to the Secretary of State’s then-policy DP5/96 in respect of individuals born in the UK who had been present for more than seven years. In the absence of a positive response, judicial review was threatened. The UKBA duly responded on 17 September, refusing the application and refusing to accept it as a fresh claim.[62]On 18 September, Duncan Lewis issued judicial review proceedings on behalf of A, B and their children, seeking to challenge the decision that the representations were not a fresh claim and of course the RDs. In line with the policy of the Secretary of State at that time, upon receipt of those proceedings, she revoked the RDs. Under the CPR, the Secretary of State had 21 days to acknowledge service and lodge any summary grounds of opposition, i.e. by 10 October 2008. Internal documents (such as 28-day Detention Review Forms dated 1 and 8 October) acknowledge that as the date by which, under the CPR, the Acknowledgment of Service had to be filed.[63]However, there is no doubt that the UKBA understood and acknowledged the need for urgency and despatch; and, in particular, understood immediately the need to expedite the judicial review proceedings, if detention was going to be maintained. This is clear from the Detention Review Forms.[64]As children had been detained, there were mandated regular reviews of detention. In the 7-day review, dated 18 September, it is said under the heading “Barrier to removal”:
“RDs have been deferred as the family submitted a Judicial Review application on 18 September 2008. A request is to be made to JRU [i.e. the Judicial Review Unit] to have the JR expedited”; to which the countersigning officer added: “Maintain detention. The family’s Judicial Review application, if expedited should not be a long-term barrier. If refused removal should take place within a reasonable time scale. The criminal history of [A] suggests he would be unlikely to comply with conditions of any release at this time given his awareness of our intentions to remove.”
[65]Similarly, in the 14-day review, which took place on 24 September, it was said:
“… On 22 September JRU passed the JR to CCD JR team to allocate. On 24 September, Family Detention Unit notified… the CCD JR team that the family is detained, they will therefore sift the case today and make a request to expedite it”; to which the countersigning officer added to the note from the earlier review (quoted above): “… Please can you obtain timescale for resolution of the JR. I am minded that we should release his wife and children until RDs are reset.”
[66]On 1 October, the 21-day review took place. Under the heading, “Barriers to removal”, the following was added:
“… On 1 October 2008 CCD JR advised there is an outstanding letter required by casework to complete addressing some further reps of 15 September, the unlawful application of DP96 and the DO decision. Once this has been addressed, the target date for lodging our defence is 10 October. A request will be made to expedite the case.”
Under, “Reasons for continued detention”, it is said:
“The family are subject to DOs. Removal failed due to a last minute JR application. The grounds for defence are due to be lodged by 10 October. A supplementary letter is required prior to this in order to address certain issues… Given that an outcome to the JR is not likely until mid to end of October, release of the mother and children may now be appropriate. ?Release mother and children and maintain detention of father until JR conclusion. RDs are not imminent.”
The countersigning officer added:
“… I agree that we should contact CCD and get them to consider release of mother & children. CCD will take a robust line on the father due to criminality but this is less appropriate for the children.”
[67]However, B and the children were not released. It seems that Becket House Family Unit was approached with a request to release them whilst the judicial review was dealt with, but, it is recorded (in the 28-day review dated 8 October):
“… [Becket House] would prefer to maintain detention of all family members as they feel there is a likelihood that she will abscond. See copy of CID aside dated 5 October”
. On 9 October, a note has been added that the case had been discussed with an Assistant Director, who agreed detention should be continued.[68]The reference to the note of 5 October is to a file note by Mr Jayes, which read as follows:
“With regard to the release of the mother and children. A lot of time and effort has been put in by the Becket House Family Team with regards to setting up an enforcement visit to encounter, arrest and detain this family on the request of CCD. This family have frustrated removal by making a frivolous JR claim and are all subject to deportation orders. In cases such as this it is mandatory for families who frustrate removal by going for JR are detained until the outcome of the JR. If this family are released it may not be possible for the Becket House Family Team to conduct a further enforcement visit for a fairly long period of time due to workload and resource constraints. In the light of this is it not possible to have the JR expedited, and a decision made as soon as possible. It has now been 17 days since it was submitted and it has been brought to my attention that fast track cases can be dealt with within a 2 week period? This maybe something the CCD JR caseworker can look into. Furthermore, due to the fact that they are now fully aware that we are intending to remove them, it is highly likely they will abscond. I do not therefore endorse the view that the family should be released. However, we will of course abide by any decision taken on this matter at senior management level.”
[69]On 16 October, the UKBA sent a further letter to Duncan Lewis, responding to points raised in the 15 September representations and setting out what are described as “supplementary reasons” for not revoking the deportation orders or granting leave to remain; and, the same day, an Acknowledgment of Service and summary grounds of opposition to the judicial review were lodged. This was six days after the last date for acknowledgment under the CPR, and there does not appear to have been any application for an extension of time (although no point appears to have been taken by the claimants in that case or the court as to lateness). The grounds of opposition (at paragraph 4) requested expedition. This was the first such request made by the Secretary of State.[70]On 22 October, a further detention review concluded that the family should continue to be detained. It said:
“An outcome for the JR will be known in the near future and pending outcome, removal should be possible soon thereafter. The criminal history in this case raises doubts regarding future reporting and voluntary departure.”
[71]On 23 October, Silber J adjourned the application for permission to proceed in the judicial review to an oral hearing, with the Secretary of State to attend. In adjourning the application into open court, rather than determining the application on the papers and inviting a renewal, Silber J no doubt intended to ensure that the application was finally determined promptly, because children were being detained. However, no date for the hearing was fixed at that stage.[72]The review of A’s detention on 27 October stated that the judicial review was:
“… being considered as an urgent case due to the family (with children) being detained. They are hopeful of a conclusion by/before 7 November 2008”
. That reflected a telephone conference call involving over twenty people, which concluded that, although detention was likely to reach 60 days before removal, a decision on the judicial review was expected by 7 November and thus detention should be maintained for another week. On 29 October, a review of the detention of B and the children also concluded that detention should be maintained. That was notified to each of the four of them by letter dated 30 October which gave, as reasons for continued detention, the risk of absconding and the imminence of removal.[73]However, concerns about the situation were growing. At a further telephone conference call on 3 November, it was noted that X “has apparently become very agitated during his continued detention”; but it was considered that, if released, there was a “high risk” that the family would abscond to prevent removal; and there would in any event have to be a second “raid” to detain them again, with all the trauma that that would bring to the children.[74]However, by the 5 November detention review, the parties were aware that the application for permission to proceed with the judicial review would be set down for hearing on 20 November – and Secretary of State had ascertained that, in practice, the earliest flight for removal after that would be on 27 November.[75]That day (5 November), the Office of the Children’s Champion expressed concern about the “marked and accelerating deterioration in [X’s] well being”. There was a discussion with the Assistant Director on 6 November, which resulted in a decision to release B and her children in the light of the minimum length of detention if they were only released after the judicial claim had run its course (75 days to 27 November) and, in particular, concerns about the welfare of X. Release of B, X, Y and Z was authorised, subject to conditions, on 6 November. They were released on 7 November. A remained in detention.[76]At the 20 November hearing, permission to proceed with the judicial review was refused. As recorded in a review of A’s detention, by 24 November, it had been decided to re-detain B and her children, once the time for appeal had expired. No reasons as to why the family were to be detained were given, except, possibly:
“Likelihood of removal within a reasonable time scale…”
The time for challenging the refusal of permission in the Court of Appeal was 1 December. No challenge was in the event made.[77]Due to lack of space at Yarl’s Wood IDC, B and her children could not be detained immediately. However, on 8 December, RDs were set for removal on 19 December, with a visit to detain B and the children fixed for 15 December. However, it turned out that the plane the UKBA was hoping to use was full; and the RDs were amended to 24 December, with the re-detention being rescheduled for 19 December. X’s mental state is recorded as being “fine”.[78]There was therefore a second raid on B’s home on 19 December, again without notice and again very early in the morning. The Form IS91R set out the same reasons for detention as the form had in September: there was no reference to the risk of absconding.[79]Removal on 24 December did not take place, because overseas escorts were not available. It was rescheduled for 29 December. On 24 December, X sent a letter to UKBA, saying that he had witnessed two wars in the Congo, and did not want to go back there. A response to that letter was sent on 28 December. However, removal did not go ahead the following day, because the vehicle used to transport A and his family broke down. RDs were rescheduled for 7 January 2009.[80]On 6 January, an addendum to the welfare assessment reports was completed. This noted that there were no health concerns about any of the children (nor were any concerns noted in the medical records). Of X, the addendum report said:
“Having spoken with [X], he says he is sleeping and eating well, though adamant that he will not return to the Congo. Whilst counselling has been offered to [X], he presently does not feel he would benefit from such support…”
. In his oral evidence, X recalled telling the officer who conducted the assessment that. The report continues:
“… [X] has re-integrated well within the class setting and speaks of having a couple of other boys of his age range, who he socialises with. He is also attending the Youth Club in the evenings…. The family remain a close knit unit, who appear to be appropriately supporting one another. Neither [A] nor [B] expressed concerns about the welfare of their children, though [RDs] are in place for tomorrow… and their attentions were very much on this fact.”
[81]The report, however, concluded:
“When I raised concerns about [X’s] attitude to being removed, [A] said he would not stand in his son’s way of doing what he felt he needed to do.”
[82]In the event, removal was not effected on 7 January. Whilst the Secretary of State did not call any witnesses at trial, it is clear from the documents that “the captain refused to carry the family as they became very disruptive upon boarding the flight”, evidence that the Claimants did not seek to controvert.[83]In his evidence before me, X frankly accepted that he was determined not to be removed, and that he was then “prepared to do anything” to prevent it. He was 14 years old at the time, and was well-built for his age. When the van in which he was transported to the airport arrived there, he was asked to step out of the van but he refused. B, who had lost sight of X, also refused to get out of the van; and, she said, she was punched to the back of her legs to force her out of the vehicle. She fought back. In her statement, she refers to “biting” the officer; but in her oral evidence she said she did not bite, but scratched one of the officers to the chest. There are references to scratching in the reports; and I am satisfied that she scratched, but did not bite, the officer at this stage.[84]B was handcuffed and taken to the plane. There, attempts were made to put her seat belt on, but, B said, she felt defenceless and she bit the man on the hand. In her oral evidence, B also referred to being kicked by more than one officer whilst she was in the plane; but there is no reference to such violence in her statement or the officers’ reports, and I reject her evidence as to being kicked. In response to being bitten, the officer slapped her, and she let him go.[85]Meanwhile, X, still in the van, kicked out at officers who tried to remove him; and, said one of the officers, he tried to bite them. X said he had no recollection of that; but did not deny that he made such an attempt. On all the evidence, I am satisfied that he did attempt to bite an officer then, in an attempt to avoid being put on the plane.[86]Due to B’s behaviour on the plane, the captain refused to transport the family. They were put back into the van, where, it seems, they calmed down quite quickly.[87]In respect of the aborted removal on 7 January, there is therefore considerable consistency between the written reports of the officers and the evidence of B and X (the only witnesses who gave oral evidence at the trial). The main difference is that, in her evidence, B was insistent that she was not the instigator of the violence: she merely reacted to violence towards her. I do not accept that. I appreciate that I did not hear from the officers, and their evidence was not subjected to the rigours of cross-examination, but: i) The reports of the officers are consistent in saying that the violence stemmed from B. ii) There are records that A was disruptive that day. He indicated to the officer who prepared the welfare assessment addendum report the previous day that, at least, he would not prevent X from being disruptive of attempts to remove the family (see paragraph 81 above). iii) X accepted that he was “prepared to do anything” to prevent his own removal. Of course, that has to be read down – he did not mean that literally – but he was certainly prepared to use violence towards the officers. iv) B was concerned at being separated from X, as she was when she was moved onto the plane. v) I am not satisfied that A, B and X had a carefully pre-arranged plan to disrupt removal. However, although she denied it, on all the evidence, I am satisfied that, by the time she was in the plane, B had firmly concluded that she was not going to be removed to the Congo that day – and certainly not removed without X – and was prepared to take disruptive steps to prevent it. X said that he thought it was the disruption of B after she had got into the plane that persuaded the captain that he should not carry the family: on all the evidence, I am satisfied that it was. Whatever had happened in the van, there can have been no excuse for B biting the officer as he was attempting to put on her seat belt in the plane. vi) But, in any event, I do not accept B’s evidence that the officers punched her legs to force her to leave the van. There is, of course, no claim that they assaulted B. The reports of the officers do not suggest that such force was used, those reports indicating that B was the aggressor. B was extremely exercised at the time. She accepts that she scratched one officer in the van. I appreciate she says that that was in response to violence towards her by the officers; but, on all the evidence, I am satisfied the officers did not use anything more than reasonable force to encourage B to leave the van, and that she used force upon them in the fear that she might be removed without X.[88]A, B and their children were returned to Yarl’s Wood IDC. The following day (8 January), X sent a handwritten letter to the UKBA, applying for leave to remain on the basis that he had witnessed two wars in the Congo whilst he had been there. This was treated as a claim for asylum. On 19 January, it was rejected, and certified that it was not a fresh claim, which meant that there was no in-country right of appeal. However, that refusal was not served on X until 29 January.[89]In the meantime, on 9 January, the UKBA appreciated that, for travel to the Congo, yellow fever vaccine inoculation was mandatory. This was not the first time that the need for vaccinations had been considered: in July 2008, it seems that the family had requested yellow fever vaccinations, and Becket House had made enquiries of Yarl’s Wood IDC as to how long these would take and whether they might delay removal. This was, of course, before steps to remove had been taken; and no response to that request for information appears to be available. In any event, on 9 January 2009, it appears to have been appreciated that vaccination was mandatory for travel to the Congo and, once administered, it would take 10 days for the antibodies to reach protective level. Those vaccines could not be administered at Yarl’s Wood IDC itself. To complete this part of the story, the medical records show that, on 21 January 2009, the family were offered, and declined, vaccination.[90]The view was taken that X could not be removed whilst his new asylum application was outstanding. Therefore, with the support of the Office of the Children’s Champion, authority was sought to “split” the family, i.e. remove A first, and then the rest of the family later. At this time, the reports suggest that all three children were fine: X is reported to have re-integrated well into the class setting, and socialised with other boys of his own age. He is recorded as sleeping well and, when offered counselling, again said that he did not feel he would derive any benefit from it.[91]RDs for A alone were set for 22 January, which that day were deferred to the following day. However, the airline cancelled the 23 January flight, and removal was therefore not even attempted that day. The family were angry and distressed by what had happened, no doubt more by the attempt to remove A without them rather than the eventual failure to do so. It is recorded that X’s reaction was very negative.[92]X was served with the refusal of his asylum claim on 29 January; together with RDs for 5 February. As X’s asylum application had been concluded, RDs for the whole family were set for that day; Ministerial authority was sought for the use of force; and two extra escorts and police escorts were arranged, “due to high risk of disruption”.[93]However, on 1 February, X saw and instructed Greenwich Community Law Centre (“GCLC”), which wrote the UKBA the following day, in a letter suggesting that X’s application for asylum dated 8 January had not been properly dealt with in the UKBA’s purported response. GCLC’s letter included the following:
“We have interviewed our client on 1 February and have noted that he is very distressed. His revelation of committing suicide was he to be returned to his country or separated from his family raised serious concerns about his safety and well being. We are in the process of commissioning a psychiatrist report to establish his current mental state… We therefore request that you cancel any removal directions until our client’s asylum claim has been properly assessed and all rights of appeal exhausted.”
That letter was supported by a statement from X, dated 2 February, stating that he would contemplate suicide rather than return to the Congo or be separated from his family.[94]As a result of that letter, on 4 February, the RDs for 5 February were cancelled; and X was placed under Assessment Care in Detention and Teamwork (“ACDT”), i.e. on “suicide watch”, as he was regarded as at risk of self-harm.[95]On 5 February, the UKBA wrote back to GCLC stating that, given the asserted risk of self-harm, the further representations were akin to a claim under article 3 of the ECHR; and they requested any further representations within seven days. On 9 February, GCLC wrote with further representations on article 3.[96]A healthcare assessment at Yarl’s Wood that day describes X in terms of becoming increasingly withdrawn, choosing to stay in his room, lacking in motivation and not attending school or meals. He was (it is said) “showing signs of depression”. As a result of those concerns, he was referred to the Child and Adolescent Mental Health Service (“CAMHS”).[97]There was a further conference call on 13 February. A number of professionals expressed the view that X’s behaviour was genuine. One opinion expressed during that call was that continuing detention was causing harm to X; generally, it is recorded that the social workers and medics “feel [he] is unfit for detention”, and that he would deteriorate over the next seven days in detention. A decision was taken, based upon X’s welfare, to release B and the three children.[98]It seems that it was put to them that day that they could be released, but only on the basis that A would remain in detention and B would be tagged. On 17 February, GCLC wrote to the UKBA pressing for the release of the whole family, but later that day they confirmed the agreement of B and the children to release on the proposed basis. They were released on 18 February.[99]On 22 June 2009, A was also released on bail, on various conditions as to sureties, reporting and tagging.[100]On 15 September, RDs were set for the whole family for removal on 27 September on the basis of self check in. They failed to check in, and a visit was made to their home that day (27 September). X and Y were not present – in her oral evidence, B accepted that they had been sent away to an aunt to avoid removal. She also accepted that she refused to disclose to immigration officers where they were. As a result of not checking in, A breached the conditions of his bail, and was re-detained.[101]On 2 October, authority was once more obtained to remove A singly. RDs were set for 18 October, but he was not in the event removed because he was disruptive, biting three escorts, with the result that the captain of the plane refused to take him. RDs were reset for 7 November, but cancelled when a further judicial review challenging removal was lodged. At this stage, it is recorded that X had gone into hiding as an absconder, to avoid removal; and X and B accepted in their evidence that X went away to stay with his aunt for several weeks, and B refused to disclose his whereabouts to the UKBA.[102]A was granted tagged bail at a hearing on 11 February 2010, at a time when his judicial review was still pending.[103]On 16 May 2010, Y attained the age of 10. By section 1(4) of the British Nationality Act 1981, a person who was born in the United Kingdom who is not a British citizen, but attains the age of 10 years (without being absent from the United Kingdom for more than 90 days in any year), is entitled to be registered as a British citizen. That entitlement arises even if the individual is subject to a deportation order. Y was therefore entitled to remain in the UK as a British citizen and, as she was a dependent child, it was contended by A and B that they, as her primary carers, could not be removed – nor could her siblings, who were then equally dependent upon their parents.[104]In February 2011, the Secretary of State agreed to grant A and the Claimants an in-country right of appeal against the deportation orders, which in effect compromised the still extant judicial review proceedings. That appeal was successful – the tribunal concluding that it would be disproportionate in article 8 terms now to deport A and his family – and, in July 2011, they were granted three years’ discretionary leave to remain.

X’s Mental Health Condition

[105]X specifically claims that he suffered psychiatric injury as a result of the detention, which he claims to have been unlawful.[106]There is no expert psychiatric report in support of this claim. X rather relies upon a report of Ms Georgia Costa dated 17 March 2009 (i.e. shortly after he had been released from detention for the second time). Ms Costa has academic qualifications in psychology, and had at that time had over 10 years’ experience working with traumatised children. Although not a medic, her opinion is consequently worthy of some considerable respect. On the basis of an interview with X, and formal psychological evaluation using Becks Depressive Inventory (the score from which was indicative of a moderate level of anxiety), she concluded that X was suffering from a depressive illness, as a result of his settled world having been “shattered by the repeated detentions and threats of deportation”, compounded by the fact that his parents had not told him the whole story as to why they were facing these problems. Whilst this is the opinion of a psychologist, who would not normally diagnose a medical condition, the report certainly supports the proposition that X was suffering from depression in March 2009.[107]The medical records confirm that. The Yarl’s Wood IDC records record that, on 4 February 2009, X was placed on ACDT “as he was considered to be at risk of harm”. He was “becoming increasingly withdrawn, choosing to stay in his room, all day and night and [had] lost all motivation even to do things that he has previously enjoyed”. It is recorded that he was often described by those that engaged with him as “sad”. It was thought that:
“[X] requires input from CAMHS to help him work round and deal with his thoughts and behaviours as he is becoming more isolated and is showing signs of depression.”
As I have indicated (see paragraph 96 above), on 10 February 2009, he was duly referred to CAMHS by the Assistant Director at Yarl’s Wood.[108]In his GP records after release from detention, he is noted on 10 March 2009 as having “poor concentration… ?depression”; and, on 30 March, matters not having improved, a positive diagnosis of depression is recorded, and X was referred again to CAMHS. Various letters from CAMHS are noted in the computerised record, but none of them is available. The last entry referring to CAMHS, or of X complaining of psychiatric or behavioural problems, is a letter from CAMHS on 4 June 2009. It can be assumed that his symptoms had subsided by then. There is no evidence of any recurrence.[109]On the basis of this evidence, although X (and the other children, Y and Z) appear generally to have borne the period of detention well – they were of course together as a family with their parents, A and B – I am satisfied that X suffered low to moderate depressive symptoms, as I have described, for a period of about 5 months, starting towards the end of the second period of detention. They had completely resolved by early June 2009.

Breach of Duty: The Lawfulness of the Detention

[110]As I have explained, the four Claimants seek declarations and damages in respect of the two periods of detention, i.e. 12 September to 7 November 2008, a period of 56 days (“the first period of detention”); and 19 December 2008 to 18 February 2009, a period of 61 days (“the second period of detention”). They claim that each constituted a period of false imprisonment in whole or, alternatively, in part; because the Secretary of State had no lawful authority for detaining them at all or, alternatively, for as long as she did detain them.[111]With regard to each period of detention, whilst she deployed alternative arguments in relation to the length of the detention, Ms Laughton’s primary submission was that, in respect of the decision to detain B, X, Y and Z , there is no evidence that the Secretary of State applied her own policy, and in particular no evidence that she considered alternatives to detaining the three children before deciding to do so. The burden of proof being upon the Secretary of State, Ms Laughton submitted that the court is bound to find that she failed to apply her own policy. The whole period of each detention is consequently unlawful.[112]In my judgment, Ms Chan, ably as she tried, could produce no answer to this simple submission. In my view, there is none.[113]In respect of the first period of detention, Ms Chan relied upon references in a CCD JR Team chronology, prepared on 26 September 2008 – any supporting documents no longer being available – indicating that the local authority Social Services Department visited the family and had no concerns about the children’s welfare; and, on 15 February 2008, the Office of the Children’s Champion “advised that there would be no problems because the SSHD was proposing to remove the whole family together”. However, none of those entries is evidence of any consideration being given to the welfare of the children in the context of their possible detention pending removal.[114]A deportation order in respect of each family member was made by the Secretary of State on 19 March 2008 (see paragraph 49 above). By May 2008, the documents show that a decision had been taken to detain B and her children. The only reason for detaining them then given was to enable the deportation orders to be served, and bio-data and photographs taken to facilitate removal (see paragraph 50 above). The Assistant Director asked for the case to be “clarified” before the detention of B and her children was authorised – but there is no evidence that her concern was the welfare of the children, or that any “clarification” given concerned their welfare. There is no evidence that any further material provided to her concerned the children’s welfare, or that, as a result of that material, she properly considered their best interests in deciding to authorise their detention.[115]I agree with Ms Laughton: there is simply no evidence that the welfare of the children was given any particular or proper consideration by those involved in the decision to detain them: and, in particular, no evidence that any thought was given to alternatives to detention, e.g. self check in. In this regard, the Family Welfare Form is instructive. I have already noted the importance of this form (see paragraph 30 above). Although completed on 12 September 2008 itself, as I have described (paragraphs 58-60 above), it had a section on “Pre-detention planning”, which set out matters which should have been considered, including:
“- is detention essential - has SCI [i.e. self check in] been considered – has detention for head of household and SCI for the family been considered…”
In response to this check list, it is said: “Detention justified because main applicant is not reporting and is subject to DO. Head of household currently detained in single detention in Oakington. Family detained pending removal. Detention scheduled 12/09/08 – 05:30 – Harm case with DO to be served detention is only option…”.[116]This is not easy to understand. If “main applicant” was a reference to A, then he was “not reporting” because he was in detention. If it was a reference to B, she was not subject to any reporting requirement. In either event, the only justification for detention that is given is consequently the fact that B and her children were subject to deportation orders. Indeed, it is said that, as this was a “Harm case with DO to be served”, “detention is only option”. That reflects other documents which also suggest that the family were detained pending removal simply because they were subject to a deportation order (e.g. the internal documents from May and July 2008, referred to in paragraph 50 above).[117]The Secretary of State pleads that there were three reasons for her belief that detention of the Claimants was necessary in 2008, set out in paragraph 8 of her Defence, namely: i) “to effect removal because of the risk that the father would abscond”; ii) “the parents’ previous disregard of immigration laws”; and iii) “the father’s commission of offences whilst he was on limited leave”[118]With due respect, these seem to me to be hopelessly unpersuasive.[119]Points (ii) and (iii) do not seem to add anything of substance to (i): they are factors which go to the risk of A absconding. With regard to (i), paragraph 5(b) of the Secretary of State’s Rejoinder is also relevant. It says this:
“It is denied that no consideration was given by the Defendant to alternatives to detention and the Claimant is incorrect to take this fact as admitted. Consideration of alternatives short of detention were considered but as recorded in the ‘Minute of a Decision to Detain’ dated 4.2.08, given that [A] had assisted his son [X] to enter the UK illegally and had committed criminal offences whilst he was on limited leave, showing his disregard for immigration control, it was considered that it was necessary to detain him in light of the risk of absconding and further offending that he presented and that no other options were available.”
(emphasis added). The focus was thus upon the risk of A absconding. None of this provides an explanation as to why it might have been considered necessary to detain B, X, Y and Z to prevent A absconding.[120]Although the risk of B or any of the children absconding is not pleaded as a reason for the necessity of their detention in September 2008, it is true that some contemporaneous documents record the expression of concern that, if “tipped off” that active steps were being made to remove them, B and her children might abscond (see, e.g., paragraphs 51 and 54 above). However: i) In addition to not being pleaded as a reason, as Ms Laughton stressed, the contemporaneous Form IS91R – which is designed to set out comprehensively the reasons for detention – singularly failed to note the risk of absconding as a reason for the detention of B and her children: the box indicating that that risk was a reason for detention was not ticked (see paragraph 55 above). It is therefore not clear that the risk of any of the Claimants absconding played any part in the consideration of, and reasoning behind, the decision that it was necessary to detain the Claimants. ii) In any event, on what is before me, there was no evidence at that time which suggested that the risk of B and/or her children absconding was any higher than in any case involving the deportation of a family (who are not detained) with a convict (who is). Ms Chan relied upon later events – notably the failure to self check in, and deliberate hiding of X and Y, in September 2009 – and such events could, in theory, provide ex post facto support for the reasonableness of a considered view taken earlier that there was a risk of absconding. But the fact that there was later “absconding” cannot be material to a failure properly to consider the risk of absconding and/or a lack of evidence of absconding at the time of the decision to detain was made. Of the evidence available to the decision-maker at the time of the decision to detain, it is true that, as the Claimants fully accept (see paragraph 61 of Ms Laughton’s skeleton argument): a) Each of the Claimants was the subject of a deportation order, issued because A (upon whom each was dependent) had committed criminal acts in the UK whilst enjoying leave to remain. b) The Claimants were overstayers. c) X had entered the UK unlawfully. However, those facts alone could not justify a conclusion that there was a risk of the Claimants (as opposed to A) absconding if alerted to the steps the UKBA were taking to remove them. The criminality upon which the deportation orders were based was not the Claimants’, but that of A – who was already detained. There was no instance of any Claimant absconding or failing to comply with conditions. In my judgment, on the evidence available to the decision-maker in September 2008, he could not properly have concluded that there was a likelihood, enhanced risk or unacceptable risk of B absconding with her children; nor were there strong grounds for believing that B would not comply with conditions, if any were to be imposed.[121]Paragraph 5(b) of the Secretary of State’s Rejoinder (quoted at paragraph 119 above) expressly denies that consideration was not given to alternatives to detaining the Claimants. As I have described (see paragraph 32 above), at the relevant time, the Secretary of State’s policy, reflecting article 37(b) of the UNCRC, required all reasonable alternatives to be considered – and sensibly discounted – before children were detained.[122]In my view, in respect of the decision to detain in September 2008, it is very clear that all reasonable alternatives were not considered. For example, no consideration appears to have been given at all to making RDs with a self check in requirement for B and her children. Such a course would of course have been entirely consistent with A remaining in detention, because the family could have been re-united at the airport for removal together: paragraph 5(b) of the Rejoinder entirely misses the point, which is concerned with the detention of B, X, Y and Z, not the detention of A. Nor, in considering whether to detain B and her children, was the policy concerning “splitting” families (see paragraph 31 above) relevant, because the family was already spilt – A was in detention, and B and her children were not – and, even if B and the children were not detained, the family could and would have been removed together. Insofar as such an alternative might have been considered at all, then there is certainly no evidence that the interests of the children were given any consideration, and certainly not the primary consideration required.[123]It seems to me that, in deciding to detain X, Y and Z in September 2008, the Secretary of State failed properly to consider and apply her own policy in a number of respects, but most obviously in failing to consider and discount alternatives to detaining them. Their detention was inherent in the detention of B. The decision to detain the Claimants was thus unlawful, as was their detention.[124]I consider the unlawfulness of the second period of detention equally clear.[125]In her Defence, the Secretary of State does not put forward any positive case for reasons for the re-detention in December 2008. However, in paragraph 10(a) of her Rejoinder (which concerns the re-detention) she says this:
“The Claimant are wrong to assert that the Defendant did not consider alternatives to detention. This was a consideration which was constantly at the forefront of the Defendant’s mind, but weighed against this was concern that the family would abscond and/or be otherwise obstructive to removal. In November 2008 the Defendant noted that [X] was becoming very vocal and critical about the Immigration Service and Yarlswood detention centre had expressed concern that he ‘may become violent at the time of his re-arrest’…. There was also concern that it had been potentially traumatic for the family during the original raid during which they were detained and that if they were released, it would be necessary for a second raid to be carried out pending removal, which would be traumatic for the children… The consideration of alternatives led to the release of the mother and children on 6.11.08 when it was established that the mother could be tagged. But the Defendant’s concerns turned out to be well-founded, given that on the attempted removal on 7.1.09, the family turned violent, biting, hitting, kicking and scratching five escorts. On another attempted removal on 18.10.09, [A] bit three escorts. Also, on an enforcement visit on 27.9.09, it transpired that the parents had hidden two of the children and the parents refused to reveal their whereabouts. This had the effect of thwarting the family’s removal as the parents could not be removed without all of their children.”
[126]However: i) Much of this recitation concerns the first period of detention. The fact that, during that time, X had been critical of the way in which the UKBA had handled matters, was no evidence that he might abscond. ii) It is true that, on 7 January 2009, A, B and X were disruptive of the attempted removal. However, although that might be evidence further justifying a belief held at the time of the decision to detain that they might abscond (see paragraph 120(ii) above), there is no evidence that any consideration was given at the time to the risk of absconding. It is noteworthy that, during the time between their two periods of detention, the Claimants complied with all conditions imposed upon their release. There was no additional evidence of risk of their absconding. iii) Indeed, there is no evidence that there was any new consideration of relevant matters prior to the decision to re-detain being made. There was no further consideration of alternatives to detention. Apart from the fact that the children had been in detention in the first period for nearly two months (which would be, if anything, a factor against re-detention), there were no new material considerations. As I have indicated, there was no further evidence that B and/or her children would abscond. The decision to detain in December was made on essentially the same evidence base as the earlier decision, and upon the basis of the same reasoning (such as it was).[127]The decision to detain in December 2008 was thus equally unlawful, as failing to be in accordance with the Secretary of State’s own policy. Consequently, the second period of detention was also unlawful.[128]Before I leave the question of breach of duty, I should emphasise this. It might be thought that, at times, the behaviour of A and B left a great deal to be desired, particularly on 7 January, 15 September and 18 October 2009. Rather than leaving the United Kingdom, as they were properly required to do, they were disruptive, being physically aggressive towards those who were only trying to do their job and (after September 2009) effectively hiding X and Y. X, whilst also being disruptive from time-to-time, was of course only just 14 years old at the time.[129]However, the Secretary of State has all sorts of weapons in her armoury to deal with those who are the subject of deportation orders who attempt to disrupt their own removal, such attempts unfortunately being only too common. The behaviour of A, B and X is, at most, only indirectly relevant to this claim, which focuses upon the failure of the Secretary of State, when making decisions to remove, properly to recognise the particular position of children; and her failure to apply her own policy in relation to the detention of X, Y and Z. However reprehensibly A, B and X may have behaved, I am in no doubt that the Secretary of State acted unlawfully in ignoring her own policy and detaining these three children, as she did. B’s claim is, effectively, parasitic upon the children’s claim – because she was the children’s primary carer, and could not be detained in circumstances in which the children were not.[130]The case is of course one of importance for the parties. However, more generally, it is largely of historic importance only. X, Y and Z were administratively detained in 2008-9 for two periods of 56 and 61 days respectively. As I have explained, the policy of the Secretary of State now restricts the length of the detention of children normally to 72 hours with a maximum of seven days (see paragraph 24-25 above).

Relief: Discussion

[131]For those reasons, the detention of each of the Claimants from 12 September to 7 November 2008, and from 19 December 2008 to 18 February 2009, was unlawful. They are entitled to a declaration to that effect.[132]As indicated at the trial, I shall adjourn the issue of quantum of damages, and shall give directions for the resolution of those issues, if they cannot be agreed. However, as also indicated, I shall make some observations – and make some findings of fact – with a view to honing the quantum issues.[133]Although the unlawfulness affects the whole of each period of detention, it is necessary to consider what would have occurred if the Secretary of State had acted as she ought to have acted. This is relevant, not to breach, but to the consequences of the breach which may affect the award of damages. As I have explained (see paragraphs 41-42 above), if the Secretary of State acts unlawfully but, had she acted lawfully the relevant individuals would still have been detained, then it is open to the court to reflect that in (e.g.) an award of nominal damages. This requires the consideration of the hypothetical of what would have happened if the Secretary of State had acted as she ought to have acted.[134]In this case, in respect of the first period of detention, had the Secretary of State considered alternatives to detaining B and her children in September 2008, as she ought to have done, one of the alternatives she would have considered would have been the setting of RDs with self check in. Given the lack of any evidence with regard to a risk of absconding, or any other reason for not pursuing that course, and given the interests of the children, on the balance of probabilities she would have pursued that course.[135]Ms Chan submits that, had she done so, we can consider evidence as to how they acted later in this regard – including the events of 7 January and 27 September 2009 – and we can therefore be confident that B and her children would not have attended the self check in. They would probably have been detained, quite lawfully, shortly afterwards; and therefore would have spent a period in detention in any event.[136]However, I do not agree. B and her family had experienced immigration solicitors acting for them (Duncan Lewis), who had lodged submissions with the European Court of Human Rights in late August 2008. Had B and her children been served with a deportation order, RDs and a requirement to self check in, the overwhelming likelihood is that, as happened when they were detained and served with RDs, their solicitors would have sent a letter before action and, if the RDs had not been cancelled, they would have issued a judicial review to challenge them. That would have automatically led to the cancellation of the RDs. Until the judicial review had run its course, B and her children would not have been detained.[137]Consequently, the entire period of the Claimants’ first detention resulted from the Secretary of State’s breach, without which, B and her children would not have been detained at all prior to the conclusion of the judicial review.[138]Given that conclusion, it is unnecessary for me to consider Ms Laughton’s alternative submissions in relation to the first period of detention, to the effect that, even if the initial decision to detain was lawful, the detention was unreasonably long and thus in breach of both the Secretary of State’s own policy (which requires detention of children for the shortest period) and also the Hardial Singh principles.[139]However, that is not to say they do not have force. Indeed, they seem to me to have overwhelming force. By way of example only, it was recognised within the UKBA at the time that, children having been detained, that the judicial review challenge to their RDs should be expedited: indeed, there are records which show that at least some recognised that continued detention was dependent upon expedition. However, far from moving quickly and seeking expedition promptly, the Secretary of State did not lodge her Acknowledgment of Service until after the 21 days provided by the CPR, and only then did she seek expedition. I appreciate that the Claimants themselves did not make an application to the court for expedition; but the Secretary of State was under a duty to take steps to expedite the judicial review, and she was under a duty to take those steps expeditiously. She did not do so. That failure of urgency and despatch alone would have meant that the period of detention was unreasonably long and thus, in good part, unlawful, both as being in breach of her policy (which demanded that children are detained for the shortest possible time) and in breach of the Hardial Singh principles (which demand children are detained for no longer than a reasonable time, “reasonableness” here being informed by article 37(b) of the UNCRC).[140]In respect of the second period of detention, the consequences of the Secretary of State’s breach are less straightforward.[141]Whilst I am firmly of the view that, if she had acted properly in accordance with her own policy, the Secretary of State ought to have, and would have, issued RDs with self check in for B and the children, I do not accept Ms Laughton’s submission – perhaps “suggestion” would be a better word – that they would probably have complied with the self check in requirement. Indeed, given X’s evidence that he would have done anything to avoid leaving the UK and the later events (which, I accept, are relevant to this issue), I consider it is highly unlikely that they would have done so. In that event, the Secretary of State could – and, in my view, almost certainly would – have ordered their detention pending removal, and could have done so perfectly lawfully. It would have been “necessary” to effect removal, and the Secretary of State would have considered it as such.[142]It is possible that, had the Claimants been detained just once and for a limited period, they would in fact have been successfully removed; but, given their determination not to go, I accept that it is likely that, even after they had been detained, none would have been removed.[143]It is difficult to assess what would have been a reasonable length of detention in those circumstances. However, a starting point is the length of detention which would have been lawful if the second decision to detain had been lawful. Ms Laughton submitted that, in that event, the Claimants ought to have been released on or shortly after 8 January 2009, when X made his claim for asylum. By then, the Claimants had been detained for 21 days, and the Secretary of State knew (or ought to have known) that it would take some little time to deal with the application. In the event, the application was treated as one made under article 3 of the ECHR, X’s representatives were given 7 days to lodge any further representations they had to make, and the application was not considered and determined until 19 January 2009. As soon as the Secretary of State had accepted that it would take over 10 days to respond to this new claim, she ought to have decided to release the Claimants pending its resolution. That decision ought to have been taken by 10 January 2009.[144]Furthermore, as I have explained (paragraph 89 above), although the issue of yellow fever vaccinations had been raised in mid-2008, it was apparently only fully appreciated by the UKBA that the Claimants required yellow vaccine inoculation before being removed to the Congo, on 9 January 2009; and the vaccination would take 10 days to take effect. Although the evidence is less than unambiguous – for example, in that knowledge, on 23 January 2009 an attempt was made to remove A without inoculation – the evidence is that such vaccines are “mandatory”. Whilst the Claimants later apparently refused to have the inoculations, it is certainly strongly arguable that that too should have in itself triggered the Claimants’ release on or about 10 January.[145]On the basis that the Claimants ought to have been released by 10 January 2009, that would have been after 23 days’ detention.[146]In assessing the length of detention that would have been likely had the Secretary of State acted lawfully, there is no reason to suppose that the length of the detention would not have been much as was the actual period of detention from 19 December. The course of such detention would of course have been different – and I appreciate that that actual period from 19 December involved two aborted sets of RDs because of exigencies outside the control of A and the Claimants – but similar events which would have resulted in delays may well have occurred (and, in my view, probably would have occurred) during the hypothetical period of detention we are considering. There would likely have been a set of RDs that were ineffective because of the behaviour of the Claimants, as there was in fact on 7 January. It is likely that an event or events would then have occurred which required the Claimants release, very shortly thereafter.[147]For those reasons, had the Secretary of State acted lawfully, I consider that the Claimants would have been detained for 23 days in any event.[148]However, on the evidence before me, in my judgment, X would not have suffered the depressive symptoms from which he did in fact suffer from February 2009 for about 5 months. The evidence is that they occurred, not simply because of the length of his detention, but as a result of there being more than one detention and multiple attempts at removal (only one of which was aborted because of the behaviour of the Claimants themselves). Had X been detained once, and for only 23 days, the evidence points firmly towards the conclusion that he would not have suffered the symptoms from which he did in fact suffer.

Conclusion

[149]For the reasons I have given, this claim succeeds. I shall direct that judgment be entered for the Claimants. Each is entitled to an appropriate declaration, that the entire period of detention in both the first and the second periods of detention was unlawful. As indicated, I shall give directions as to the assessment of the quantum of damages due.