Naidike & Ors v. Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2004] UKPC 49

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 10 of 2003Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
Naidike & OrsAppellantAttorney General of Trinidad and Tobago (Trinidad and Tobago)Respondent
Before
Lord Hope of CraigheadLord Scott of FoscoteLord Walker of Gestingthorpe Baroness Hale of RichmondLord Brown of Eaton-under-HeywoodDate 12 October 2004
[1]:- Lord Hope of Craighead Lord Scott of Foscote Lord Walker of Gestingthorpe Baroness Hale of Richmond Lord Brown of Eaton-under-Heywood [Delivered by Lord Brown of Eaton-under-Heywood ] The first appellant (Dr Naidike) is a Nigerian citizen who in December 1990 qualified in Nigeria as a medical practitioner and on 17 February 1991, at the age of 28, came to Trinidad to take up an internship at San Fernando General Hospital. In the event he remained in the employment of the Ministry of Health, initially as a medical intern and then, from March 1992, as a temporary house officer, successively at San Fernando General Hospital, Point Fortin General Hospital and Port of Spain General Hospital, until 7 June 1995.[2]Pursuant to Regulations made under section 44 of the Immigration Act 1969 CHAP.18:01 (the Act) Dr Naidike was not permitted to "engage in any profession, trade or occupation whether for gain or not in Trinidad and Tobago or be employed in Trinidad and Tobago unless there is in force in relation to him a valid work permit" (regulation 10 (1)). It was further provided (by regulation 10 (2)) that his employer too would be committing an offence unless a valid work permit was in force. By regulation 10 (3) the application for a work permit has to be made by the employer.[3]Dr Naidike's entitlement to enter Trinidad and thereafter to remain was governed by section 9 of the Act:
"9(1) An immigration officer may allow to enter Trinidad and Tobago on such conditions and for such periods as may be fit and proper in any particular case, the following persons or classes of persons, as the case may be: ... (c) tourists or visitors; ... (i) persons entering Trinidad and Tobago for the purpose of engaging in a legitimate profession, trade or occupation. (2) Subject to this Act, an immigration officer shall issue to a person who has been allowed to enter Trinidad and Tobago under sub-section (1) ..., a certificate which shall be expressed to be in force for a specified period and subject to such terms and conditions as may be mentioned therein. (3) Every person who has a certificate under sub-section (2) to enter Trinidad and Tobago and who wishes to remain for a longer period than that previously granted or to have the conditions attaching to his entry varied, shall, notwithstanding that he is already in Trinidad and Tobago, submit to an examination under the provisions of this Act, and the immigration officer may extend or limit the period of his stay, vary the conditions attaching to his entry, or otherwise deal with him as if he were a person seeking entry into Trinidad and Tobago for the first time. (4) Where a permitted entrant is in the opinion of the Minister a person described in section 8 (1) (k), (l), (m) or (n), or a person who ... (f) was admitted or deemed to have been admitted to Trinidad and Tobago under sub-section (1) and remains therein after the expiration of the certificate issued to him under sub-section (2) ... the Minister may at any time declare that such person has ceased to be a permitted entrant and such person shall thereupon cease to be a permitted entrant. (5) The Minister may make a deportation order against any person referred to in sub-section (4) ..., and such person shall have no right of appeal and shall be deported as soon as possible." "
The Minister" is defined by the Act as the minister responsible for immigration, namely the Minister for National Security.[4]Dr Naidike was initially admitted to Trinidad for a month under section 9(1)(c) of the Act with a passport stamp stipulating "employment not permitted". On 11 March 1991, however, a one-year work permit was issued by the Ministry of National Security permitting Dr Naidike to remain in employment by the Ministry of Health until 24 February 1992 and it is to be assumed that his section 9(2) certificate was varied accordingly. Thereafter successive annual work permits were applied for by the Ministry of Health and issued by the Ministry of National Security, respectively on 12 March 1992 with retrospective effect from 17 February 1992, 18 February 1993 with effect from 17 February 1993, and 12 April 1994 with effect from 17 February 1994. All four permits specified as a condition that Dr Naidike be "repatriated at the end of the approved period" and the last three required in addition "that a national be trained as an understudy". The fourth and final work permit expired on 16 February 1995 and notwithstanding the Ministry of Health's application on 3 February 1995 for its renewal, no further permit was issued.[5]Dr Naidike's section 9(2) certificate was extended for the last time on 1 July 1994, extending his permitted stay in Trinidad, consistently with his final work permit, until 16 February 1995.[6]The course of events following the expiry of Dr Naidike's final work permit was, in outline, as follows. On 7 June 1995 he was told to stop work by a staff nurse at Port of Spain General Hospital acting on the instructions of the hospital's personnel officer, in turn acting on behalf of the Ministry of Health. On 21 September 1995 the Ministry of Health's application for a further work permit was finally refused. On 27 September 1995 Dr Naidike voluntarily attended the immigration office and was told by Police Corporal Marshall (on the instruction of Chief Immigration Officer Harper) that a work permit had been refused and that he should now make arrangements to leave the country. Thereupon Dr Naidike agreed to return to the office on 4 October 1995 with a valid departure ticket. In late October or early November 1995, following Dr Naidike's failure to attend on 4 October, Mr Harper gave instructions for him to be arrested for remaining in the country illegally. Those instructions were carried out on 28 November 1995 (after a failed earlier attempt on 15 November) when Dr Naidike was seen in his motor car and arrested by a number of police officers including Corporal Marshall and Constable Bartholomew. In the course of his arrest, which Dr Naidike sought to resist, both he and Constable Bartholomew suffered comparatively minor injuries. In the result, following his arrival at the police station, Dr Naidike was rearrested and charged with assaulting Police Constable Bartholomew in the execution of his duty. He was then taken to Port of Spain General Hospital under police guard.[7]On 4 December 1995, Dr Naidike issued a writ of habeas corpus. The return to the writ, made on 7 December, is an important document and must be set out in full:
"We, ARTHUR HARPER, NEIL BARTHOLOMEW and GERARD MARSHALL in obedience to the writ do certify and return that Robert Perekebena Naidike is detained at the Port of Spain General Hospital under police guard and that he is charged with a criminal offence with assaulting a police officer, Police Constable Neil Bartholomew in the execution of his duty. Mr Naidike was lawfully arrested and detained by Corporal Gerald Marshall pursuant to the provision of section 15 of the Immigration Act Chap. 18:01 which empowers a police officer to arrest and detain for an inquiry any person who upon reasonable grounds is suspected of being a person referred to in section 9(4) or section 22(1)(i). At the time of his arrest Mr Naidike was suspected to be in breach of the provisions of section 9 (4) of the Immigration Act Chap. 18:01 on the grounds that he has remained in the country beyond the period permitted him by the Immigration Department. On July 17, 1994 Mr Naidike was permitted to remain in Trinidad and Tobago up to February 16, 1995 and since that date he has been given no further extension. Upon arrest under section 15 of the Immigration Act Chap. 18:01 a person in respect of whom an inquiry is to be held may be detained pending said inquiry. However, Mr Naidike is warded at the Port of Spain General Hospital under police guard since Sunday December 2nd, 1995 and has not yet been brought before a Magistrate to answer the criminal charge nor has any inquiry under the Act been held."
[8]Their Lordships have already set out section 9 (4) of the Act. The other two sections referred to in the habeas corpus return provide as follows:
"15 Every police officer and every immigration officer may, without the issue of a warrant, order or direction for arrest or detention, arrest and detain for an inquiry or for deportation, any person who upon reasonable grounds is suspected of being a person referred to in section 9(4) or section 22(1)(i), and the Chief Immigration Officer may order the release of any such person. 22(1) Where he has knowledge thereof, any public officer shall send a written report to ... the Chief Immigration Officer in respect of paragraphs (d) to (i), with full particulars concerning ... (f) any person, who, being a permitted entrant, has been declared by the Minister to have ceased to be such a permitted entrant under section 9(4); ... (i) any person other than a citizen of Trinidad and Tobago who either before or after the commencement of this Act came into Trinidad and Tobago at any place other than a port of entry or has eluded examination or inquiry under this Act."
[9]On 8 December 1995 Warner J dismissed Dr Naidike's habeas corpus application. Although on 14 December Dr Naidike lodged a notice of appeal against that order, he did not thereafter pursue it.[10]Meantime, on 12 December 1995, Dr Naidike had been released from hospital and brought before the magistrates' court in respect of the assault charge. Although this was a bailable offence and the matter was to be adjourned for a week, the magistrate, on being shown a detention order signed that day by an immigration officer, remanded Dr Naidike in custody. The order made by the immigration officer was in standard printed form (with Dr Naidike's name inserted in both limbs of the form) as follows:
"Whereas an examination or inquiry is to be held respecting Robert P Naidike or whereas a deportation/rejection order has been made under the Immigration Act, 1969, against Robert P Naidike I hereby order/direct you the Commissioner of Prisons to cause his detention in accordance with the provisions of the Immigration Act 1969."
[11]On 19 December 1995, following the week's adjournment, Dr Naidike pleaded not guilty to the assault charge whereupon he was bailed in respect of that offence. He continued, however, to be detained under section 15 of the Act.[12]On 20 December 1995 Dr Naidike began judicial review proceedings challenging the Minister of National Security's refusal to renew his work permit and challenging also his detention under section 15 of the Act.[13]On 3 January 1996 the Minister of National Security made a deportation order against Dr Naidike in the following terms:
"I have reached the decision that you may not enter or remain in Trinidad and Tobago for the reason that: (i) you are neither a citizen nor a resident of Trinidad and Tobago; (ii) you are a person described in section 9 (4) (f) of the Immigration Act having been admitted to Trinidad and Tobago under sub-section (1) and having remained in the country after the expiration of the certificate issued to you. I hereby order you to be detained and to be deported to Nigeria and I further order you to remain out of Trinidad and Tobago while this order is in force."
That same day Dr Naidike obtained the court's leave to pursue his judicial review proceedings and, pending their determination, a stay upon the deportation order.[14]On 26 January 1996 Warner J ordered by consent that Dr Naidike be released from custody "under an order for supervision" on provision of security in the sum of $13,000 and the surrender of his passport. On 5 February 1996, upon compliance with those terms, Dr Naidike was finally released from custody.[15]On 26 March 1996 Dr Naidike began two further sets of proceedings: fresh judicial review proceedings to challenge the deportation order, and a wide-ranging constitutional motion. On 19 April 1996, following the grant of leave on 16 April 1996 for the second judicial review proceedings, both judicial review challenges were stayed pending the outcome of the constitutional motion.[16]Dr Naidike's constitutional motion has two main limbs, one concerning the non-renewal of his work permit, the other his detention in custody from 28 November 1995 until 5 February 1996. He complains that each of these involved a violation of his fundamental human rights and freedoms contrary to section 4(a) of the Constitution of Trinidad and Tobago (the Constitution), his rights respectively to the enjoyment of property and to liberty, and for each he claims damages by way of redress pursuant to section 14 of the Constitution.

(a) guarantees:

"the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of the law."
Section 14 provides that where someone alleges a contravention of his fundamental rights "then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion".[17]Before turning to consider how each of these claims was dealt with in the courts below it is convenient first to take brief note of the other two appellants, respectively Dr Naidike's then wife (Mrs Naidike) and their daughter (Faith).[18]In June 1991 Dr Naidike was joined by Mrs Naidike in Trinidad where they lived together until November 1994 when Mrs Naidike left for a three months' visit to the United States. In February 1995 it seems that Mrs Naidike tried to return from the United States to Trinidad but was not permitted to do so. In the event, their Lordships were told, it was not until late 1998 that Mrs Naidike returned to Trinidad and then only for a short while. On 22 September 2000, it now appears, Dr Naidike was married again, this time to a citizen of Trinidad and Tobago and, following the lifting of his deportation order and the return of his $13,000 bond in May 2002, he was granted a fresh work permit, enabling him at last to resume employment with the Ministry of Health on 20 December 2002. Finally, on 23 April 2003, Dr Naidike was granted residence status consequent on his second marriage.[19]Faith was born on 14 September 1993. Having been born in Trinidad she is a citizen of Trinidad and Tobago. Until Mrs Naidike left for the United States in November 1994, Faith was cared for by both her parents, but thereafter it seems that Dr Naidike took care of her with the help of others. At the time of Dr Naidike's arrest on 28 November 1995, Faith and two other adults were in the motor car with him. Since Dr Naidike was to be detained and neither of the others would take responsibility for her, a woman police constable who was present took Faith and placed her in the care of a children's home. There she remained for the ten weeks of Dr Naidike's detention until finally they were reunited the day following his release, on 6 February 1996.[20]Mrs Naidike and Faith were also parties to the constitutional motion.

(c) of the Constitution:

"The right of the individual to respect for his private and family life."
[21]Judgment in the Constitutional Court was given by Kangaloo J on 1 April 1999, rejecting Dr Naidike's work permit claim but allowing part of his claim for wrongful deprivation of liberty, namely his detention between 12 December 1995 (when Dr Naidike was released from hospital) and 3 January 1996 (when the deportation order was made against him). The Court of Appeal (Sharma, Nelson and Lucky JJA) unanimously dismissed Dr Naidike's appeal against the rejection of his work permit claim but by a majority (Sharma and Lucky JJA), and despite the respondent Attorney General not having cross-appealed against Kangaloo J's order, held that Dr Naidike's detention had been lawful throughout. Nelson JA in a minority judgment concluded that both Dr Naidike's initial arrest and his detention throughout had been unlawful. Although the Board has been assisted by the judgments below, it would not be helpful to make detailed reference to them, in particular having regard to Dr Naidike's subsequent history. Their Lordships will instead turn at once to Dr Naidike's two central claims, leaving over for later consideration Mrs Naidike's and Faith's claims, both of which were rejected by the courts below. The Work Permit Claim[22]Following the Minister's refusal to renew Dr Naidike's work permit on 21 September 1995, he was thereafter unable to continue in his employment with the Ministry of Health (or indeed in any other employment in Trinidad and Tobago) for some seven years. How in the event Dr Naidike managed to sustain himself (and, presumably, Faith) during those years Mr Knox was unable to say. Be that as it may, his claim relates to his loss of earnings throughout that period.[23]In pursuit of this claim Mr Knox advances and must make good each of three propositions:(1) Dr Naidike had a legitimate expectation that the Minister would not refuse to renew his work permit save for good reason and after giving Dr Naidike a proper opportunity to address any concerns the Minister might have.(2) The Minister had in fact no good reason for refusing to renew the work permit and certainly gave Dr Naidike no opportunity to deal with the reasons which he later gave for his decision. The decision was therefore unlawful.(3) The unlawful refusal of his work permit deprived Dr Naidike of his employment with the Ministry of Health, the only means of livelihood available to him in Trinidad and Tobago. He was thereby deprived of his right to the enjoyment of property within the meaning of section 4 (a) of the Constitution, a deprivation inflicted upon him without due process of law.[24]Proposition (1) seems to their Lordships irresistible. A series of cases from McInnes v Onslow-Fane [1978] 1 WLR 1520 onwards clearly establishes that between on the one extreme cases of forfeiture and on the other mere application cases there lies an intermediate category of cases where an applicant seeks the renewal or confirmation of some benefit (be it a licence or membership or whatever) which properly ought not to be denied him without good reason and without his having a chance to satisfy whatever concerns the decision maker may have. Perhaps the most authoritative statement of the position is to be found in Lord Diplock's speech in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 408 where he speaks of, "some benefit or advantage which ... [the applicant] had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment." Dr Naidike had just such a legitimate expectation here.[25]Proposition (2) requires some further brief reference to the facts. Shortly after the Ministry of Health applied for the renewal of Dr Naidike's permit in February 1995 a particular problem arose which then delayed the Ministry of National Security's consideration of the application for several months. Another Nigerian, also calling himself Robert Naidike, living in the Hague, had written to the Trinidad and Tobago Embassy in Brussels seeking assistance to return to Trinidad, asserting that his Nigerian passport had been taken from him. The Ministry had to verify which was the genuine Robert Naidike and it was not until August 1995 that the Nigerian in the Hague was finally established to be the imposter. Meantime Dr Naidike had been writing increasingly angry letters to the Ministry of National Security, letters fiercely critical in particular of one of the Ministry's officials, Mrs Peggy Grell, who he suggested was engaged in a "diabolical plot" against him.[26]In an affidavit sworn on 28 October 1996, over a year after the Minister's decision, Hart Edwards, the Permanent Secretary, dismissed Dr Naidike's allegations against Mrs Grell as "totally untrue" and explained the Minister's refusal of the work permit as follows:
"6 The applicant, in flagrant violation of the conditions of the work permit and the provisions of the [Act] was engaged in business activity with a company known as Tinrol Group Ltd of which he is a director. [He] had been warned by letter dated April 30 1992 from [the Minister] that his engaging in business activity would be a breach of the conditions of his work permit. [That] was in response to a letter dated April 15, 1992 from the applicant seeking work permits [for himself as Chairman of the company and for his wife as Managing Director]. Prior to the Minister's response he met in person with the applicant. However, the applicant had continued his activities with the company despite the warning. … 7 Further, the applicant has been preaching as a pastor without being the holder of an overseas missionary permit. These were considered to be serious breaches of the conditions of his work permit as well as the provisions of the [Act]."
[27]Mr Knox strongly contests each of those reasons: neither as a director of the named company nor as a pastor (a licensed Minister certified by the "Faith Center" of Rockford, Illinois) did Dr Naidike, so he says, receive any remuneration and, although regulation 10 (1) refers to "any profession, trade or occupation whether for gain or not " (emphasis added), the work permits themselves stipulate only that they "cease to be valid if the holder ... takes up other paid employment, business or professional occupation" (emphasis added). Mr Knox points out too that the exchange of correspondence concerning Dr Naidike's directorship of the company had taken place some three and a half years earlier and had never been raised again and that the only information the Ministry had about his being a pastor appears to have come from his own letter of 21 August 1995 describing himself as a Minister of God. Yet more tellingly, Mr Knox draws attention to a letter from Dr Naidike's attorney to the Ministry dated 23 August 1995, urging the early renewal of the work permit and concluding:
"Should you wish to have any discussion on this matter or require further information, both my client and I would be available upon reasonable notice."
[28]In the light of this evidence, Nelson JA in the Court of Appeal said that he "would have found it difficult to treat [Dr Naidike's] activities as breaches of the condition that he be gainfully employed only by the Ministry of Health". Their Lordships too are sceptical whether the Minister had indeed, in Lord Diplock's words, "some rational grounds for withdrawing" the benefit previously extended to Dr Naidike, namely his right to work under successive earlier work permits. Of that, however, they cannot be sure. But the second limb of proposition (2) is clearly made out: Dr Naidike was given no opportunity whatever to explain the circumstances of his company directorship and his activities as a pastor. The refusal decision was accordingly unlawful on this ground if no other.[29]Proposition (3) presents Mr Knox with substantially greater difficulties. He seeks to support it by reference to three authorities in particular. Rees v Crane [1994] 2 AC 173 concerned a High Court judge in Trinidad and Tobago unlawfully excluded from the roster of sittings for the following term. The Privy Council dismissed the State's appeal against the Trinidad and Tobago Court of Appeal's order upholding the judge's constitutional challenge on the ground that his fundamental right to the protection of the law under paragraph 4(b) of the Constitution (the right to the protection of the law) had been violated. The decision to suspend him was contrary to section 137(1) of the Constitution which provided that:
"A judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause), or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section."
That contravention, it was held, could not be corrected retrospectively by a later suspension order. So too here, submits Mr Knox, Dr Naidike should be held entitled to recover damages in respect of whatever loss was occasioned by the unlawful decision to refuse him a further work permit.[30]Their Lordships cannot accept the argument. Put aside that the judge's claim in Rees v Crane arose under section 4(b) (rather than 4(a)) of the Constitution. The true distinction between the two cases is more fundamental: the unlawful suspension of a High Court judge himself holding office under the Constitution bears scant comparison with an administrative decision vitiated by procedural impropriety such as occurred here. Dr Naidike had no substantive right to be granted a work permit, only the right to have his application fairly decided. The present case has a much closer similarity to Marks v Minister of Home Affairs (1984) 35 WIR 106, a decision of the Bermudan Court of Appeal quashing a refusal to extend the work permit of a foreign psychiatrist who after six years had built up a lucrative practice. It has some similarity too to R v Assistant Commissioner of Police of the Metropolis ex parte Howell (1986) RTR 52 in which after twelve years a London cab driver's licence was not renewed on medical grounds. In both cases the challenge succeeded because the applicant had been given no opportunity to make representations about the matters said to have concerned the decision-makers. But the outcome in both cases was not an award of damages for the losses resulting but rather an order that the matter be reconsidered and decided afresh. In Marks , indeed, the court recognised in terms that "an applicant has no right to a renewal of his permission to engage in gainful occupation". (p.111).[31]The second of the three cases upon which Mr Knox seeks to rely is Marine Workers Union v Mauritius Marine Authority (reported together with Société United Docks v Government of Mauritius ) [1985] AC 585 , in which dockworkers were held entitled to constitutional redress in respect of the loss of contractual rights brought about by legislation enacted for that very purpose. The essential facts were that the dockworkers and their employer, the Ports Authority (MMA), submitted a wage dispute to arbitration by which both sides agreed to be bound. The award provided for a substantial wage increase which the workers then sought to have enforced. The government, however, thought the increase undesirable and introduced legislation which enabled the Attorney General to object to the award's enforcement. Lord Templeman, giving the judgment of the Board, said at pp 607-608:
"Prior to the Amendment Act the appellants were entitled to an order of the court making the award executory and enforceable and each relevant employee was entitled to sue the MMA for, and to recover, the difference between the salary and allowances in fact paid to him and the salary and allowances to which he was entitled pursuant to the award during the duration of the award. The Amendment Act has thus deprived and was intended to deprive each worker of a chose in action, namely the right to sue for and recover damages for breach by the MMA of its contract of employment. Section 3 of the Constitution of Mauritius recognises and declares inter alia the right of the individual to protection from deprivation of property without compensation. The Board have already determined in connection with the contemporaneous case of Société United Docks v Government of Mauritius that the protection afforded by section 3 is not confined to property which has been compulsorily taken possession of or compulsorily acquired within the meaning of section 8. The appellants rightly complained on behalf of the workers employed by the MMA that the workers had been deprived of property, namely their right to sue for and recover damages for breach by the MMA of its contract of employment, contrary to section 3 of the Constitution."
Lord Templeman then added at p609:
"It suffices that the Amendment Act was a coercive Act of the government which alone deprived and was intended to deprive the appellants of property without compensation and thus infringed the Constitution."
[32]It is Mr Knox's submission that, by the same token that the dock-workers' contractual entitlement against their employers was held to be property within the meaning of the Mauritian Constitution, so too here Dr Naidike's strong probability of continuing employment with the Ministry of Health but for the Ministry of National Security's unlawful refusal to renew his work permit, the necessary pre-condition of such employment, constituted property of which he was deprived without due process in violation of section 4(a). The Board regard the argument as hopeless. The difference between on the one hand a clear contractual entitlement to a sum of money previously awarded by arbitration and on the other hand an entitlement to have an administrative decision lawfully taken is too obvious to require elaboration. The first can readily be characterised as "property", a right which the owner enjoys and of which he cannot be deprived without due process. The second is simply not recognisable as a right to "property" of any kind, however likely it is that a favourable decision would carry in its wake the applicant's gainful future employment.[33]The third and last case relied on in support of Dr Naidike's contention that he has been deprived of "property" by the wrongful refusal to renew his permit is Tre Traktorer Aktiebolag v Sweden 13 EHRR 309 , a decision of the European Court of Human Rights. The applicant restaurateurs were complaining of an administrative decision revoking their licence to sell alcoholic beverages. Having found a violation of Article 6(1) of the Convention (the revocation decision not being open to judicial review) the Court turned to consider the applicant's complaint under Article 1 of the First Protocol, the first paragraph of which provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
[34]Mr Knox seeks to pray in aid paragraph 53 of the Court's judgment:
"The government argued that a licence to sell alcoholic beverages could not be considered to be a 'possession' within the meaning of Article 1 of the Protocol. ... Like the Commission, however, the Court takes the view that the economic interests connected with the running of [the restaurant] were 'possessions' for the purposes of Article 1 of the Protocol. Indeed, the Court has already found that the maintenance of the licence was one of the principal conditions for the carrying on of the applicant company's business, and that its withdrawal had adverse effects on the goodwill and value of the restaurant. Such withdrawal thus constitutes, in the circumstances of the case, an interference with [the applicant's] right to the 'peaceful enjoyment of [its] possessions'."
A little later in its judgment, however, the Court concluded that although the applicant could no longer operate the restaurant business, the fact that it "kept some economic interests represented by the lease and the property assets" meant that there was no deprivation of property within the meaning of the second sentence of Article 1.[35]Again the argument appears to the Board unsustainable. There is, of course, a superficial resemblance between the withdrawal of the liquor licence there and the non-renewal of the work permit here, the one a condition of the carrying on of the restaurant business, the other a pre-condition to continuing employment with the Ministry of Health. But whereas a restaurant business is recognisable as a capital asset and thus property, the prospect of further temporary employment, however certain, quite simply is not.[36]Their Lordships conclude that Dr Naidike's appeal against the dismissal of this work permit claim must accordingly fail. The arrest and detention claim[37]As has been seen, Dr Naidike was arrested and detained under section 15 of the Act. Mr Knox submits that in fact no such power of arrest and detention existed here. He advances two main arguments. First he submits that a ministerial declaration under section 9(4) of the Act was required before Dr Naidike was to be regarded for the purposes of section 15 (and, indeed, section 9(5)) as "a person referred to in section 9(4)". It is now common ground between the parties, although differently understood by the majority of the Court of Appeal, that in fact no such declaration was ever made, and nor did those responsible for the arrests suppose that it had been. Secondly, Mr Knox submits that in any event the section 15 power of arrest and detention is only exercisable in order to facilitate either the holding of an inquiry or a person's deportation pursuant to an existing deportation order. With regard to the second submission it should at once be noted that, despite the terms of the habeas corpus return (see paragraph 7 above) and the first limb of the detention order (see paragraph 10 above), there was never any question of an inquiry (or examination) being held into Dr Naidike's case; still less was he to be regarded as someone falling within the terms of section 22(1)(i) of the Act. Nor, of course, was a section 9(5) deportation order made against him until 3 January 1996.[38]Mr Guthrie QC for the respondent contests both arguments. He submits, first, that no section 9(4) declaration is required: an immigrant is "a person referred to in section 9(4)" within the meaning of both section 9(5) and section 15 provided only that he falls within the description of one of the specified sub-paragraphs of sections 8(1) or 9(4); secondly, that it is unnecessary for there to be a deportation order in existence for someone to be arrested and detained "for deportation" under section 15. Their Lordships will consider each submission in turn.[39]The arguments in favour of a declaration being required before someone is properly to be described as "a person referred to in section 9(4)" are in the Board's view compelling. In the first place, their Lordships would note regulation 40(3) of the Regulations made under the Act:
"The declaration issued by the Minister under section 9(4) of the Act that a person has ceased to be a permitted entrant shall be in the form set out as Form 54."
[40]The relevant form (in fact Form 53 rather than Form 54) is in the following terms:
"Order of the Minister under section 9(4) Immigration Act, Ch 18:01 I ... hereby declare that ... being a person described in section ... of the Immigration Act, has ceased to be a permitted entrant with effect from ... date ... Minister of National Security."
[41]True, there is no requirement to serve or otherwise publish the declaration but it appears to the Board unsurprising that an immigrant should only lose his status as a "permitted entrant" upon some clear and formal ministerial act. Section 9(4) expressly provides that it is the declaration itself which "thereupon" results in the person ceasing to be a permitted entrant. Mr Guthrie for his part is quite unable to explain why otherwise section 9(4) should provide for a declaration (which is required too by section 22(1)(f) - see paragraph 8 above). Were the powers under sections 9(5) and 15 to be exercisable without such a declaration, indeed, there would be no point in ever making one.[42]These considerations aside, section 9(4) must be construed as it reads, namely as a single sentence by which a permitted entrant who "in the opinion of the Minister" is either "described in section 8(1)(k), (l), (m) or (n)" or "a person who" falls within one of the sub-paragraphs of section 9(4) itself may then, if the Minister so decides, be declared to be no longer a permitted entrant. It would be wrong to classify as "a person referred to in section 9(4)" someone about whom the Minister may have formed no opinion whatever or indeed someone whom the Minister in his discretion has chosen not to deprive of his permitted entrant status notwithstanding that he falls within one of the specified categories.[43]Mr Guthrie's reliance upon the phrase in section 15, "who upon reasonable grounds is suspected", is misplaced. Those words are necessary to permit the arrest of someone against whom the arresting officer reasonably suspects there to be a section 9(4) ministerial declaration in force; they do not permit the officer to second guess both the Minister's opinion as to whether the person concerned falls into one of the stipulated categories and also, assuming he does, the way in which the Minister would choose to exercise his discretion. If, indeed, the respondent's arguments were correct, there would have been nothing to prevent an officer from arresting Dr Naidike back in February 1995, as soon as the last extension to his section 9(2) certificate expired.[44]Having regard to the Board's conclusion on this first issue it becomes strictly unnecessary to consider Mr Knox's second argument. Their Lordships will nevertheless address it briefly.[45]The argument about section 15 - and more particularly the question whether section 15 permits a person to be arrested and detained "for deportation" without there being a deportation order already in force - requires consideration also of the two surrounding sections, sections 14(1) and 16:
"14(1) The Minister may issue a warrant for the arrest of any person in respect of whom an examination or inquiry is to be held or a deportation order has been made under this Act, and may order the release of any such person. 16 Any person in respect of whom an inquiry is to be held, or an examination ... has been deferred ..., or a deportation or rejection order has been made, may be detained pending inquiry, examination, appeal or deportation ..."
[46]Both sides point to the contrast between sections 14 and 16, both of which speak of an inquiry "to be held" or a deportation order which "has been made", and section 15, which refers to arrest and detention "for an inquiry or for deportation", and each side submits that this supports their contended-for construction of section 15. Mr Guthrie argues that whereas sections 14 and 16 clearly require an existing deportation order, section 15 requires only that such an order be in contemplation. Mr Knox's rival submission is that section 15 in effect uses shorthand to achieve the same result as section 14 and 16: by the same token that arrest and detention "for an inquiry" must necessarily refer to an inquiry yet "to be held", so too arrest and detention "for deportation" should be understood to refer to deportation pursuant to an order already made – as, indeed, the second limb of Dr Naidike's detention order (see paragraph 10 above) expressly asserted.[47]Mr Knox points also to the contrast between section 14's requirement for a ministerial arrest warrant and the very wide power accorded by section 15 to "every police officer and every immigration officer" to arrest without warrant anyone reasonably suspected of having ceased to be a permitted entrant. It would seem strange were the section 14 power of arrest to arise only once the deportation order has been made and yet the much wider power under section 15 be available for the arrest and detention of someone against whom no deportation order has been made. Against that it may be argued that were this limb of section 15 to be available only against those in respect of whom the officer reasonably suspected a section 9(5) deportation order to be already in force, it could easily have said so.[48]The regrettable fact is that section 15 (and, indeed, certain other sections in this part of the Act) contain a number of puzzling features. The Board in the end is driven to the view that the intended scope of section 15 is uncertain and that this uncertainty must be resolved in favour of the liberty of the individual. The governing principle is that a person's physical liberty should not be curtailed or interfered with except under clear authority of law. As McCullough J succinctly put it in R v Hallstrom, ex parte W (No. 2) [1986] QB 1090, 1104:
"There is ... a canon of construction that Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention."
[49]True it is, as the majority decision of the House of Lords in Wills v Bowley 1983 1 AC 57 illustrates, that there are limits to this presumption. The legislation there was construed by the majority in such a way as not unduly to narrow the police's powers of arrest. Proper consideration should be had to the maintenance of public order and other aspects of the public interest and powers conferred by Parliament should not lightly be rendered ineffective. The tension was well explained by Lord Wilberforce in R v IRC ex parte Rossminster Ltd [1980] AC 952 , 997-998:
"The courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers [powers of entry conferred on the Revenue]. They are the guardians of the citizen's right to privacy. But they must do this in the context of the times, i.e. of increasing Parliamentary intervention, and of the modern power of judicial review. ... [W]hile the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process."
[50]Nothing in the present case suggests that the public interest would be served or the democratic process advanced by giving a wide rather than narrow interpretation to section 15. Quite the contrary: unless the immigrant's detention is required for an inquiry to be held forthwith or for his removal to be effected pursuant to a deportation order already in force, there seems no sound reason for the power to be exercised.[51]It follows from all this that, subject only to two final arguments by which Mr Guthrie seeks to dispute the availability of constitutional relief for a claim of this nature, Dr Naidike is entitled to damages for his wrongful arrest on 28 November 1995 and his wrongful detention from that date until his release on 5 February 1996. Contrary to the trial judge's view, the respondent cannot rely on Dr Naidike's re-arrest and initial period of detention on the charge of assaulting a police officer in the execution of his duty: since PC Bartholomew had no power to arrest Dr Naidike, the officer was not acting in the execution of his duty when he was assaulted. Nor can the respondent rely on the deportation order when eventually this came to be made: absent the ministerial declaration required under section 9 (4), the deportation order itself was not properly made.[52]Mr Guthrie contests Dr Naidike's entitlement to constitutional relief, even assuming his unlawful arrest and detention, on two grounds: first, because he was not denied "due process of the law", and secondly because his appropriate and only proper remedy was in any event by way of a private law claim for damages for wrongful arrest and false imprisonment. Their Lordships are not impressed by either argument and will deal with them comparatively briefly.[53]In support of the first, Mr Guthrie refers to the well established principle conveniently summarised in the Board's recent judgment in Independent Publishing Co Ltd and T & T News Centre Ltd v Attorney General [2004] UKPC 26 (at para 88) as follows:
"In deciding whether someone's section 4 (a) 'right not to be deprived [of their liberty] except by due process of law' has been violated, it is the legal system as a whole which must be looked at, not merely one part of it. The fundamental human right, as Lord Diplock said [in Maharaj v Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385 ], is to 'a legal system ... that is fair'. Where, as in Mr Maharaj's case, there was no avenue of redress (save only an appeal by special leave direct to the Privy Council) from a manifestly unfair committal to prison, ... one can understand why the legal system should be characterised as unfair. Where, however, as in the present case, Mr Ali was able to secure his release on bail within 4 days of his committal – indeed, within only one day of his appeal to the Court of Appeal – their Lordships would hold the legal system as a whole to be a fair one."
[54]The legal system as a whole, submits Mr Guthrie, was fair to Dr Naidike. The arresting officers and the detaining authority acted in good faith: they were not to know the construction the Board would eventually put upon sections 9(4) and 15. The habeas corpus application was fairly and speedily dealt with and, although refused, could in any event have been appealed.[55]The argument is unsustainable. The fact that the arresting officers (and the Chief Immigration Officer who gave the instructions for Dr Naidike's arrest) honestly believed that he was "a person referred to in section 9(4)" of the Act, cannot avail them. The officer's reasonable suspicion under section 15 had to relate to the existence of facts that would in law have justified Dr Naidike's arrest, not to the state of the law itself. A mistake about the law giving the power of arrest cannot of itself found that power of arrest. Nor can the court's habeas corpus jurisdiction of itself operate to defeat Dr Naidike's claim to have been deprived of his liberty otherwise than "by due process of the law". Had Dr Naidike been arrested and detained pursuant to a court order – as was Mr Ali, the journalist committed for contempt in the Independent Publishing Company case – that would have been another thing. The reference to "the legal system as a whole" is not apt to encompass loss of liberty through executive action such as was taken in the present case.[56]Mr Guthrie's second argument rests upon a line of authority exemplified by the Board's decision in Jaroo v Attorney General of Trinidad and Tobago [2002] 1 AC 871 , holding that where a parallel remedy exists in common law only exceptionally will it be proper and not an abuse of process to proceed by way of constitutional motion. In particular, as Lord Hope of Craighead pointed out in giving the Board's judgment at paragraph 36:
"Their Lordships wish to emphasise that the originating motion procedure under section 14(1) is appropriate for use in cases where facts are not in dispute and questions of law only are in issue. It is wholly unsuitable in cases which depend for their decision on the resolution of disputes as to fact. Disputes of that kind must be resolved by using the procedures which are available in the ordinary courts under the common law."
[57]In the present case, however, as has already been made clear, the lawfulness of Dr Naidike's arrest and detention turns entirely on the true construction of the legislation. In any event it is now far too late for the respondent to assert abuse of process. If such a point is to be taken, it must be taken at the outset of proceedings, not as here at a comparatively late stage. Mrs Naidike[58]As already noted, Mrs Naidike's claim was rejected by both courts below. Kangaloo J dealt with it very shortly indeed:
"This applicant's case was not seriously pursued. In any event there is not a scintilla of evidence that she was prevented from returning to Trinidad and Tobago by any organ of the State. She cannot therefore successfully claim any breach of her rights under the Constitution."
[59]The court of Appeal shared that view. As Nelson JA put it:
"Although there might have been an arguable case as to the infringement of the wife's right to private and family life, I agree with Kangaloo J ... that there was before the learned judge no evidence that any organ of the State prevented the wife from returning to Trinidad and Tobago."
[60]The fact is that Mrs Naidike's case has rested from first to last upon the following brief passage in Dr Naidike's affidavit:
"7. My wife in November 1994 went to the United States of America and was supposed to return to Trinidad on 23 February 1995. At the John F Kennedy airport on 23 February 1995 she was denied and/or prevented from boarding the aircraft for Trinidad. She was told by the airline personnel that a visa was required before she entered Trinidad. 8. Trinidad and Tobago is a member of the Commonwealth, likewise Nigeria and as far as I know, no visas are required for Nigerian citizens to enter Trinidad and Tobago. At no time was my wife declared a prohibited immigrant to this country. 14. Since February 1995 my wife was denied access to Trinidad and Tobago. She visited the Trinidad and Tobago High Commission in the United States of America and was denied an entry visa."
[61]Those assertions are pure hearsay. No direct evidence was ever adduced in support of this claim, least of all by way of an affidavit from Mrs Naidike herself. Indeed, it may be doubted whether Mrs Naidike has any idea that an appeal in her name is being pursued before the Board. (After this judgment was written the Board was told that there were after all no instructions whatever from Mrs Naidike to pursue the appeal.) Faith[62]The Constitutional motion raised two principal points on behalf of Faith: first, that her interests were not properly taken into account before a deportation order was made against her father; second, that her father's unlawful arrest and detention infringed her own right to respect for family life. (A third argument, that her own detention in the children's home infringed her own constitutional rights under section 4(a), is no longer pursued: although the care order was obtained under the wrong legislative provision, it is now accepted that the State had a duty to look after her when there was no one else to do so.)[63]The first issue now appears to their Lordships academic. Plainly there will be cases when careful regard will need to be had to the interests of family members – and not least those of a child who is a national of the host country – before the family is separated – or the child is effectively forced to leave – as a result of a deportation order. Given, however, their Lordships' conclusion that this deportation order was in any event unlawful on other grounds, and given further that, as events have transpired, it was never in fact executed but instead subsequently revoked, this seems an inappropriate case in which to explore the limits of this principle. The facts too were never properly explored: for all one knows, the effect of deporting Dr Naidike might have been to reunite Faith with her mother.[64]The second issue is more difficult. Does it necessarily follow from the Board's conclusion that Dr Naidike's arrest and detention were unlawful that Faith herself has a claim for the violation of her right to family life? In their Lordships' opinion it does not. Nothing could be plainer than that the State's action here was not aimed at Faith at all. Her separation from her father was the incidental effect of the State's actions against him. Although there are a number of judgments of the European Court of Human Rights under Article 8 of the Convention suggesting that such incidental effects may constitute an infringement of the rights of those affected by action against another family member, these were all cases involving long-term decisions to deport or expel in which it was practicable for the authorities to take all relevant factors into account and strike a fair balance between them. When making an arrest without warrant it is really impracticable to do more than assess the immediate situation. Without the benefit of much fuller argument than was developed in this case, the Board would be reluctant to hold that the right of one family member to respect for family life is engaged by the short-term arrest and detention of another. In any event, although a child may well be harmed by a traumatic separation from a primary carer, it has not been shown that Faith was in fact harmed by what happened in the present case.[65]Their Lordships accordingly reject the claim for damages made on Faith's behalf.[66]In the result, their Lordships will allow Dr Naidike's appeal in respect of his arrest and detention and remit that part of his constitutional motion for the assessment of damages by a judge of the High Court. Save to that extent the appeals of all three appellants are dismissed. There will be no order for costs save that the respondents must pay to the first appellant one half of his costs incurred in each of the courts below and before the Board. Judgment by Baroness Hale of Richmond[67]Having read the judgment prepared by Lord Brown of Eaton-under Heywood, I agree that, for the reasons he gives(1) Dr Naidike's appeal in respect of his arrest and detention should be allowed and that part of his constitutional motion should be remitted for damages to be assessed;(2) the appeal pursued on Mrs Naidike's behalf should be dismissed; and(3) Faith is not entitled to damages.[68]I wish, however, to say a little more about Faith's claim. It appears that this was not fully argued in the Court of Appeal but it is addressed in some detail in the judgment of Nelson JA and we have heard argument upon it. In my view, it is important that the rights and interests of children are taken seriously by all countries which are party to the United Nations Convention on the Rights of the Child. It is all too easy to lose sight of those rights and interests in proceedings which are mainly concerned with the rights and interests of adults.[69]Faith was born in Trinidad on 14 September 1993 and is therefore a citizen of Trinidad and Tobago. At the time of her father's arrest on 28 November 1995 she was only two years and two months old. Her father had been responsible for her care since November 1994 as her mother had been out of the country. She was in the car with her father and two other adults when he was arrested. The woman left the scene. The trial judge accepted the evidence of woman police constable Edwards that the other man was unable or unwilling to take care of the child. The father wanted to take her with him into custody but was told that this was not possible. Because there was no-one else to look after her, WPC Edwards took the child to a convalescent home. The home would not keep her for more than a week without a court order. Accordingly, on 12 December 1995 the officer obtained an order under section 11 of the Children Act for the child's detention in a place of safety, which was renewed on 17 January 1996. The child was reunited with her father on 6 February 1996, the day after his release from custody, and has lived with him ever since.[70]As Lord Brown of Eaton-under-Heywood states in paragraph 62, it is not now argued that Faith's detention in the convalescent home infringed her own right under section 4(a) of the Constitution not to be deprived of her liberty without due process. The crucial right claimed on her behalf is her right under section 4(c) of the Constitution, as a citizen of Trinidad and Tobago, to respect for her private and family life. It is argued that the Minister was bound to take her rights into account before making the order to deport her father. (Indeed, the same argument would apply to the decision to refuse him a work permit which preceded the deportation decision.) It is also argued that the unlawful arrest and detention of her father in her presence infringed her right to respect for family life.[71]The first point can be put in more than one way. Trinidad and Tobago is party to the 1989 United Nations Convention on the Rights of the Child. Article 3.1 of the Convention requires that:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
[72]The Convention itself has not been incorporated into the domestic law of Trinidad and Tobago, although its spirit is reflected in numerous specific laws relating to children. That is also the position in Australia and Nelson JA in the Court of Appeal drew attention to the well-known decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1994) 128 ALR 353. This concerned the decision to deport a Malaysian citizen who had married an Australian and had three children by her but had also been convicted of some serious drug dealing. The majority held that Australia's accession to the Convention gave rise to a legitimate expectation that administrative decision-makers would act in accordance with the Convention and treat the best interests of the children of a potential deportee as a primary consideration. If the official proposed to act in a way which did not accord with that principle, procedural fairness required him to give the children notice and an adequate opportunity of presenting their case.[73]Gaudron J, at pp 375 to 376, reached the same conclusion but by a more direct route:
"What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involved obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be in need of protection."
[74]Mr Guthrie, for the Attorney General, quite rightly points out that the rights enshrined in the United Nations Convention are not absolute rights. The children's interests may have to give way to other more weighty considerations. Among these must be the right of the state of Trinidad and Tobago to expel non-citizens who no longer have a right to remain. Article 9 of the Convention draws a distinction between the compulsory separation of a child from her parents, which must be subject to judicial review and necessary in her best interests, and the separation of a parent from his child, for example by detention, imprisonment, exile, deportation or death. But the High Court of Australia was concerned with the procedural fairness of the decision. The children's legitimate expectations did not give rise to a right to have their interests treated as the paramount consideration at all times. They did give rise to an expectation that if their interests were not to be treated as a primary consideration in a matter directly affecting their welfare, then the family had to be warned and given an opportunity to make representations.[75]If this is the position reached in Australia, where there is no constitutional guarantee of the right to respect for private and family life, one would expect it also to be the position in Trinidad and Tobago, where there is. 'Respect' brings with it an expectation that these matters will at least be taken into account by the decision-making state. It does not lead to the conclusion that no foreign parent of a citizen child can ever be deported. Lucky JA was understandably concerned that this could be subject to "convenient abuse". But there is a substantial body of case law under the comparable provision in article 8 of the European Convention on Human Rights, where the right of the state to exclude or deport non-citizens conflicts with the right to respect for family life with citizen family members who have the right to remain: see, for example the discussion by Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator ; R (Do) v Immigration Appeal Tribunal [2004] UKHL 26 , [2004] 3 WLR 23 and by Baroness Hale of Richmond in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 , [2004] 3 WLR 58 . The decision-maker has to balance the reason for the expulsion against the impact upon the other family members, including any alternative means of preserving family ties. The reason for deporting may be comparatively weak, while the impact on the rest of the family, either of being left behind or of being forced to leave their own country, may be severe. On the other hand, the reason for deporting may be very strong, or it may be entirely reasonable to expect the other family members to leave with the person deported.[76]It may very well be that if the decision-maker had properly considered those matters in this case he would nevertheless have refused to renew the work permit and ordered the deportation. Faith was a very little girl at the time. Her family life was with her father. She cannot have established strong roots in the wider community. She had little or no private life other than that with her family. The benefits to her of being brought up in Trinidad and Tobago, rather than in Nigeria or wherever else her father could go, might very well be insufficient to outweigh the legitimate state interest in deporting him. Indeed, their deportation might have benefited her if it led to her being reunited with her mother. On the other hand, on the material before the courts, it is not entirely clear what was the state's interest in deporting Dr Naidike, who was employed as a doctor in the state's own hospitals and had not, it would appear, given serious cause to exclude him.[77]It is clear, however, that no such balancing exercise was at any time conducted in this case. The consequences for Faith had the deportation order been put into effect might have been serious. However, as the deportation order was never put into effect and Faith has remained throughout living with her father in the country of her birth, she has not in fact suffered any damage as a result of the failure to take her interests into account. To that extent the point is academic in her case. At this distance in time there would be little point in making a declaration that her rights under section 4(c) had been infringed, even if we were all of that view.[78]The second issue is more difficult because the state's actions undoubtedly did have the effect of depriving Faith of her family life with her father, who had sole parental responsibility for her in Trinidad, for a period of over two months. The separation of a two year child from her primary carer for such a long period is a serious matter. Under article 8(2) of the European Convention it could be justified, either in the interests of the child or in pursuit of some other legitimate aim. The lawful arrest and detention of a parent is undoubtedly a legitimate aim. Further, the requirements of law enforcement would ordinarily prevail over the interests of the child. Whatever may be the position where longer term decisions such as deportation or imprisonment are concerned, the police cannot normally be expected to take account of the interests of a child when making a lawful arrest. Even if, as here, the child is present and her needs are obvious, the immediate need to enforce the law will take priority, provided that, as here, proper arrangements are made for the child's care.[79]But in this case the Board has found that the arrest and subsequent detention were unlawful. Further, this decision is not based upon the facts surrounding the arrest. It is based upon the lack of any power to arrest and detain without a prior Ministerial declaration as to Dr Naidike's status. An interference by a public authority with the right to respect for family life cannot be justified under article 8(2) of the European Convention, unless it is "in accordance with the law". An unlawful arrest is self-evidently not in accordance with the law. Does that then mean that the state has interfered without justification with Faith's right to respect for family life?[80]As pointed out by Lord Brown of Eaton-under-Heywood (at paragraph 64), it is accepted in this case that the state's action was not aimed at Faith at all. Her separation from her father was the incidental effect of the state's actions against him. The case law under article 8 of the European Convention (referred to in the authorities cited above) indicates that the rights of one family member may be infringed by action taken against another. But the action taken in those cases was the long term decision to deport or expel in which all the relevant factors could be placed before the authorities and taken into account. This cannot be done before a decision to arrest without warrant. The police cannot be expected to discover what family members may be affected by the decision, let alone the information needed to balance the respective interests. The damage to the child's interests would be the same whether or not she was with her father when he was arrested: in fact it might have been worse if she had not been there, because at least the police officers knew that alternative arrangements had to be made for her. In those circumstances, I too would be reluctant to hold that the short term arrest and detention of one family member, even if unlawful, necessarily involved a lack of respect for the private and family life of another. The point must be left for fuller consideration in another case. In this case, there is no evidence that Faith was in fact harmed by these events, although I fully accept that a child may well be harmed by a traumatic separation from a primary carer.[81]For those expanded reasons, therefore, I agree with the Board's decisions in the case of Faith as well as of the adult parties.

Cited in 6 later judgments