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Neutral Citation Number: [2010] EWHC 20 (Admin)
Case No: CO/10754/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

DAVID ELVIN QC
- - - - - - - - - - - - - - - - - - - - - Between :

(on the application of FREDERICK DOBGIMA
NUKAJAM)
Claimants
THE SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Defendant
- - - - - - - - - - - - - - - - - - - - - Mr. Alex Goodman (instructed by Hani Zubeidi Fadiga and Co.) for the Claimant
Mr. Matthew Barnes (instructed by the Treasury Solicitor) for the Defendants
- - - - - - - - - - - - - - - - - - - - - JUDGMENT
(As approved by the Court)
R (oao Nukajam) v. Secretary of State for Home Department The Deputy Judge (David Elvin QC):
Introduction
The Claimant, who is a national of Cameroon, seeks judicial review against the Secretary of State for the Home Department, acting through the UK Border Agency (“the Agency”), and damages for false imprisonment and compensation for violation of his rights under article 5 ECHR in respect of detention for three weeks between 5 November 2008 and 26 November 2008 when he was detained with his partner (Sandra Mbelle Yanga) and their three children in the immigration removal centre at This case is of concern since it raises the question of the lawfulness of the detention of a family including three very young children, aged approximately six months and three years (twins), respectively, at the time of detention. Permission was refused on the papers by David Holgate QC (sitting as a Deputy High Court Judge) on 21 November 2008 and granted by Christopher Symonds QC (sitting as a Deputy High Court Judge) on renewal of that application on 23 January 2009, limited to the issue of unlawful detention. The Defendant filed an acknowledgment of service and summary grounds opposing the grant of permission on 17 November 2008 and should have file detailed grounds by the end of February 2009 (see CPR Part It is fair to say that due to the Secretary of State’s very late attention to the case, the issues as they now come before me differ significantly from what appeared in the summary grounds. On any view, the reasons given for the continuing detention of the family at the time were bad and based on both a misunderstanding of fact by the Secretary of State and also on a failure to consider and apply his own policy on the administration of malarial prophylaxis to children prior to removal to a country with Although the summary grounds had plainly been overtaken by a better understanding of the facts as they were presented at the oral renewal of the permission application it seems that little if anything was done by the Agency to investigate further, serve evidence, or issue instructions to the Treasury Solicitor or counsel until a very late stage. I am assured by Mr Barnes, and accept, that serious efforts had been made by R (oao Nukajam) v. Secretary of State for Home Department the Treasury Solicitor to obtain instructions from the Agency for some three months prior to the hearing and that the fault lies squarely with the Agency’s failure to give While this form of delay and procedural ineptitude is all too frequent in this area of the law, and may be understandable up to a point (though not necessarily excusable), it is a particular cause for concern and criticism in circumstances which involve the detention of young children. Indeed, the handling of this case as a whole both prior to and following the bringing of judicial review fails in several serious respects to meet the requirements of both the public interest in an efficient immigration system and the On the Claimants’ behalf Mr Goodman understandably, faced with a witness statement and skeleton argument served late on the day before the hearing, and altering the case from that set out in the summary grounds served on 17 November 2008, sought an adjournment and disclosure. Had I thought that the Claimants’ position was prejudiced by the lamentably late change of position by the Secretary of State I would have not hesitated to adjourn the hearing with costs. However, as I indicated at the hearing, it seemed to me that upon the Secretary of State’s assurance (confirmed by witness statement following the hearing) that the duty of candour had now been complied with, albeit at a very late stage, the hearing could proceed without prejudice to the Claimants. Indeed, as will be apparent, the Secretary of State’s change of position assisted the case for the Claimants since he conceded in evidence that an error had been made with regard to the assumption as to drugs which had been required to be administered to the Claimant’s children in order to provide sufficient malarial prophylaxis for their removal to Cameroon, as had been suggested in the skeleton argument for the renewal hearing. The Secretary of State’s case was originally that the detention of the Claimant and his family in November 2008 was lawful and was for the purposes of securing the administration of anti-malarial medication and facilitating removal. It now being accepted that the basis on which detention was originally justified was incorrect the Secretary of State now seeks to argue that the detention was in any event lawful and R (oao Nukajam) v. Secretary of State for Home Department that there was therefore, as a matter of causation, no unlawful detention because the family could have been lawfully detained in any event. The Secretary of State’s instructions on the administration of anti-malarial drugs
Since an understanding of the course of events turns, to a significant degree, on the Secretary of State’s own guidance on the provision of prophylaxis prior to removal it is appropriate if I set out the relevant sections of that guidance before turning to the The relevant protocols are contained in the Immigration Directorates’ Instructions (“IDI”) (February 2007 version) Chapter 1, Section 8. Relevant parts of the IDI (with “5. INOCULATIONS AND OTHER PREVENTIVE
TREATMENT (PROPHYLAXIS) FOR PERSONS BEING
REMOVED FROM THE UK

5.1 British residents considering visits to countries where certain diseases are endemic are advised to have appropriate inoculations or other preventive treatment before travelling. Those facing removal from the UK may claim that it would be a breach of their human rights or simply unreasonable to return them to a particular country without access to preventive treatment of this kind and may attempt to delay their removal on these grounds. 5.2 When considering such claims the general principle is that individuals are responsible for safeguarding their own health and that of their children. It should also be borne in mind that medical advice given to British residents who will be returning to the UK may not necessarily apply to people returning to the countries concerned. When someone is informed that their appeal rights are exhausted and/or they are otherwise liable to be removed from the UK, caseworkers should remind them at the same time of their responsibility for minimising any health risks to themselves or their dependants in the country of return and advise them to consult a general medical practitioner about any preventive treatment needed before travelling and that they may have to pay for it. 5.3 In some cases preventive treatment may be unnecessary because of immunity acquired before coming to the UK but a limited number of people, for example pregnant women and children under 5, may be particularly vulnerable to infection and therefore may need inoculation or other prophylaxis in preparation for their return. The time between notification that their appeal rights are exhausted and final removal should normally allow sufficient time for people to take medical advice from a general medical practitioner and arrange for and complete any recommended treatment. R (oao Nukajam) v. Secretary of State for Home Department 5.4 If a person falling within the above vulnerable categories due to leave the UK under an assisted voluntary removal scheme requests, with the support of a doctor’s letter, that inoculation or malaria prophylaxis be provided, the request should normally be granted. 5.5 A person subject to removal cannot in principle claim any entitlement to remain in the UK to benefit from medical treatment. However, requests to delay removal for a short period to allow for preventive treatment should be considered on their merits in the light of medical advice and standard operational procedures before removal. This is particularly important when pregnant women, young children or unaccompanied minors are involved. Detainees
5.6 People detained prior to removal have access to medical care and advice from healthcare professionals in immigration removal centres. Detainees are not charged for treatment. Where removal centre medical staff consider that preventive treatment should be given, removal directions may be set but should be dependent on any pre-departure element of such treatment being completed. Medical advice on preventive measures, including advice leaflets, should be made available to detainees as soon as possible, and should if possible be given as appropriate in the initial medical examination or screening which all detainees receive within 24 hours of detention, and in any case when removal directions are set. Where removal centre medical staff consider that preventive treatment is necessary and can be completed (subject to para 5.7 below) without delay to planned removal, removal directions may be set but for a date after the treatment is completed. Caseworkers and those responsible for setting removal directions should consult the health care professionals, via the IND team at the centre, on the appropriate minimum time lag between administering medication and removal taking place. Caseworkers, those responsible for setting removal directions and IND teams at removal centres should document case histories as thoroughly as possible. This is because, if a JR is commenced, access to a claimant's medical records cannot be guaranteed. Therefore, if staff have carefully minuted, for example, any refusal of malarial prophylaxis after it has been offered, then that may make it easier to keep RDs in place, respond to any further representations on the point and/or defend any JR claim. These points should if possible be minuted directly on CID. Malaria Prophylaxis
5.7 Preventive treatment for malaria is a special case in that medication
must be taken shortly before travel. People detained prior to removal
may not therefore be able to make the necessary arrangements for
themselves. Any malaria prophylaxis recommended as appropriate by
the removal centre medical staff for pregnant women and children
under 5 should normally be provided and time allowed for it to take
R (oao Nukajam) v. Secretary of State for Home Department effect before removal. The guidance by the Advisory Committee on
Malaria Prevention (at Appendix, together with a supplementary letter)
should be followed and copies of it should be given to the detainees
concerned. Specialist advice (according to the relevant condition or age
of the detainee), which can be obtained from a helpline, should be
provided for pregnant women, children under 5 and those with medical
conditions which might contra-indicate the prophylaxis. In the event of
adverse side-effects, time should also be allowed to obtain and follow
further medical advice. Removal need not be deferred in any case
where a detainee declines (on his or her own behalf or on behalf of a
dependent child) to take malaria prophylaxis that has been provided on
medical advice.
5.8 It should be noted that para 4.8 of the ACMP advice states that “Mefloquine [also known as Larium] is generally started with a 2-3 week window usually to determine tolerance if it has not been used before. If removal is delayed, stopping and restarting the prophylactic regime should not be a problem.” In the case of an adverse reaction to mefloquine (which may produce psychotic side effects) or other prophylaxis, removal centre healthcare staff should seek advice about alternative medication. . Countries and territories with malarious areas
5.11 Specific information on malaria risk for each country is provided in the table below. The recommended prevention is also indicated. The recommended prevention for each country is decided on the basis of the following factors: the risk of contracting malaria; the prevailing species of malaria parasites in the area; the level and spread of drug resistance reported from the country; and the possible risk of serious side-effects resulting from the use of the various prophylactic drugs. The numbers I, II, III and IV refer to the risk (Type I is low risk, Types II, III and IV represent ascending orders of risk) and type of prevention based on the table below.” Cameroon is in category IV in the Table and the Table specifies for Category IV countries the following under “Type of Prevention”: “Mosquito bite prevention plus either mefloquine, doxycycline or atovaquone/proguanil (take one for which no resistance is reported in the specific areas to be visited).” Para. 5.12 also contains a table “Features of antimalarials used in the prevention of chloroquine-resistant falciparum malaria” which in the case of mefloquine gives a “Half-life of blood level [Note: this indicates the recommended time between prescription of medication and removal].” R (oao Nukajam) v. Secretary of State for Home Department The clear effect of the IDI was to recognise that Cameroon was one of the countries considered to present a high risk of malaria for which mefloquine was one of the preferred forms of preventative treatment. The Claimant’s children, all of whom were under the age of five, fell within the category of those who “may be particularly vulnerable to infection and therefore may need inoculation or other prophylaxis in preparation for their return” (5.3). In cases where mefloquine was required to be administered to young children, the Agency should have been aware from the table at para. 5.12 of the IDI that it would take at least three weeks from first administration for the prophylaxis to take effect sufficient to enable removal. As para. 5.6 states: “removal directions may be set but should be dependent on any pre-departure element of such treatment being completed.” The problems which arose in the present case resulted from the fact that the Agency, which accepted that malaria prophylaxis should be provided to the Claimant’s children prior to travel, wrongly assumed Malarone would be administered, rather than the mefloquine which was actually administered. As a result the detention beginning on 5 November was based on the incorrect assumption that removal could be effected within a few days (correct for Malarone but not mefloquine) and consequently in disregard of the IDI requirement to allow at least 3 weeks for the prophylaxis to be established before removal. However, mefloquine was not administered until 6 November 2008 and it therefore followed that it should have been considered when it was appropriate to set removal given the need to allow for 3 weeks before travel once the drug had been administered. The facts
The Claimant, who is a national of Cameroon, first entered the UK on 13 February 2003 as a visitor and was granted a visa until 8 April 2003. In October 2003 he entered under a student visa valid until 31 October 2004 and, having applied in October 2004 for leave to remain as a student/student nurse was refused leave on 2 December 2004 and his appeal was dismissed on 29 March 2006. He did not leave the UK and was subsequently found to be working illegally in a factory on 12 June 2007 and was arrested on suspicion of being an overstayer. Directions for the removal of the Claimant to Cameroon were first set on 12 June 2007, for removal on 17 June, which was cancelled due to an asylum claim, which was refused and dismissed on R (oao Nukajam) v. Secretary of State for Home Department appeal on 2 November 2007. Further submissions were made to the Defendant and The Claimant’s partner, who is also a national of Cameroon, had arrived in the UK and claimed asylum on 18 July 2006. Following unsuccessful appeal and judicial review proceedings, her appeal rights were exhausted on 23 August 2007. The Claimant, his partner, and their three children, were detained on 22 September 2008, pending removal on 27 September, but the removal was cancelled due to the It is significant (though not referred to in the Summary Grounds) that the Claimant (and his partner) had been given temporary admission on two occasions, despite the prospects of removal which they were facing from at least 2007 onwards. The first temporary admission was granted on 7 July 2008 and the second on 26 September 2008, concurrent with release from detention. On 7 July residence and reporting conditions were imposed and similar conditions were imposed on the September grant. It is not fair to assume from these grants that the Agency considered that at the time there was not a likelihood of absconding or failure to comply with the conditions but it appears that this was the view taken at the time by the Midlands Enforcement Unit (“MEU”) of the Agency. In an internal note dated 26 September not disclosed until after the hearing, Simon Ward of MEU noted: “It is not sustainable to detain this family for another 6 weeks simply to wait for a flight. They have young children and as far as I can tell from CID a positive reporting history. Please release on TR with reporting for adults. A Newman agreed.” While those grants were not made with reference to the same period to removal as might have been in contemplation in November 2008, they are nonetheless highly relevant to the current submission by the Secretary of State to the effect that, despite the absence of a material change in circumstances, there was in November 2008 a significant risk of absconding by both the Claimant and his partner. The assessment which was made in September 2008, in which Miss Newman concurred, contrasts with the approach taken in November and before me. R (oao Nukajam) v. Secretary of State for Home Department In response to inquiries made by the family’s MP, the MEU made inquiries of Serco Healthcare, the healthcare contractor responsible for Yarls Wood and received a response to those inquiries on 15 October 2008: “I enclose a response from the GP in regard to your query today, essentially the time frame given should be sufficient to allow malaria prophylaxis to be obtained and commenced, as the drug of choice malarone is effective if started 1-2 days prior to travel.” The Claimant’s MP was advised of this on 21 October 2008 in terms which made it clear that the treatment would be administered “at the next point of detention. prior to removal, so that the malaria treatment for the child is able to take effect.” In respect of the present claim, the Claimant and his family were detained at 6.15 am on 5 November 2008 and taken to Yarls Wood Immigration Removal Centre pending removal on 10 November. The detention review completed on 6 November notes the “RDs are now in place for 10/11/08. An enforcement visit was conducted this morning to home address to detain this family [clearly the form was filled in on 5 November] . All family were compliant and co-operative. Subjects and children taking no medication” There was no reference to any risk of absconding. The Claimant’s solicitors wrote to the Agency in a letter dated 6 November 2008 and advised that the children would require the administration of anti-malarial drugs and that the Healthcare Unit had told the Claimant that to establish prophylaxis would require administration for some 2-3 weeks in advance of removal. This meant, it was stated, that the Claimant and his family could not be removed on 10 November and asked for a deferral until prophylaxis had time to take effect. The Claimant’s solicitors referred the Defendant to the guidance on malaria prophylaxis in the IDI. On 7 November the Agency received a further letter from the Deputy Healthcare Manger of Serco Health which claimed compliance with the IDI: “. I can reassure you that the correct protocol for offering of malarial treatment to under 5’s was followed and that at this time I can see no reason why this family are not fit to fly.” R (oao Nukajam) v. Secretary of State for Home Department The Agency therefore responded to the Claimant’s letter on 7 November stating: “Confirmation has been obtained from a doctor at Yarls Wood Healthcare Centre that anti-malarial treatment is effective if started at least one to two days before entering a malaria endemic area and that, in this case, it can be started between 5th and 10th November to allow the drug to take effect. We are aware that the treatment has been offered to your family. In the absence of any strong countervailing circumstances there is no barrier to your client’s removal, and arrangements to remove your client and his family from the United Kingdom will therefore proceed.” The application for judicial review was issued on 7 November 2008 challenging the removal decision of 5 November on the basis that time had to be allowed for malarial prophylaxis to take effect. In that event, the removal directions were cancelled on 8 November but it appears from Miss Newman’s first witness statement that the Defendant took the decision to continue the detention for such period as was necessary to achieve their imminent removal. At that stage, I note, it was only two or three days after the first administration of mefloquine and nearly 3 weeks would still have to run before it would be appropriate for the Claimant and his family to be On 10 November the MEU notified the Claimant and his family that detention was to be maintained, giving the reasons on a new detention form IS91R. The new forms indicated in the case of both the Claimant and his partner that there was a likelihood of absconding if given temporary admission or release, citing in support factors including absence of close ties, previous failure comply with conditions on temporary admission or release (which is accepted to be incorrect), absence of satisfactory evidence of any lawful basis to be in the UK and that he had previously failed or refused to leave the UK when required to do so. In the case of the Claimant’s partner, the supporting factors differed and also included use of deception in a way “that leads us to consider that you may continue to deceive” but no allegation of a previous failure to comply with conditions or previous failure to leave the UK. The children’s forms made a similar allegation of risk of absconding (no doubt dependent on the allegation against their parents) though the supporting factors were reduced. In the recent documents disclosed by the Agency, an internal Agency note by Simon Ward (of the MEU) also dated 10 November (which in the notes precedes the entry referring to the completion of the new IS91Rs) listed the boxes to be ticked on the R (oao Nukajam) v. Secretary of State for Home Department new IS91Rs, but did not include the likelihood of absconding as one of the reasons in the case of any member of the family. Clearly, then, the risk of absconding did not form part of the initial view formed as to the reasons for continued detention and it was added at some point after that note though on the same day. I note that the 10 November forms appear to be the first occasion that it had been alleged by the Agency that there was a likelihood of the Claimant absconding. I well understand that given the burden of work facing the Agency it is neither reasonable nor realistic to expect perfection. However, I do have the advantage of the internal Agency/MEU notes which cover the whole period of detention and which allows a better view to be reached of what was being considered. Whilst it appears from those notes that the Agency took into account the prospect of expedition of the paper application for permission as part of the circumstances justifying continuing detention, there is no reference to or discussion of the likelihood of absconding which was added without comment in the notes to the forms after Simon Webb’s note of 10 November. It did not even warrant a mention in the notes following Serco’s letter revealing the error with regard to identifying the drugs administered. The impression is that this was a makeweight reason, possibly added as an afterthought. Alison Newman’s witness statement of 15 December 2009 refers in the section “detention” to the reasons for the continued detention. There is no explanation, even there, of the reasoning behind the inclusion of the likelihood of risk of absconding in the 10 November detention forms. The Court is left, therefore, with an unexplained late addition to the form which receives support not in the witness statement but only in the skeleton argument and in the opposition to bail which I will deal with shortly. The Agency’s note of 11 November does not display an open mind towards the outcome of a review of detention notwithstanding a request for temporary admission “A 7 day detention review is due 12.11.08, detention was maintained by you 10/11/08. Also a TA request has been received from Fadiga & Co solicitors – can you please review and maintain detention, and also consider the TA request.” R (oao Nukajam) v. Secretary of State for Home Department That application for temporary admission was then rejected by the Agency on 12 November, repeating the reasons given in the detention forms, including the A welfare assessment was completed on 17 November 2008 which showed the children generally good health, and not in distress, but coping well with their life at Yarls Wood and being well looked after by their parents. These factors, of course, provided no basis for justifying the continued the detention of the children. The AOS was lodged also on 17 November and the Summary Grounds claimed that the decision to remove was lawful and that the Defendant had duly followed the protocol for malarial prophylaxis. The Summary Grounds stated that, based on medical advice from the IRC Healthcare Centre, and the letter of 15 October 2008 (above), 1-2 days was sufficient to allow the anti-malarial drug Malarone to take effect. It was also submitted that there had always been a realistic prospect of removal within a reasonable period and that detention had therefore been lawful. The Grounds did not refer to any supporting factors for the reasonableness of the period and, in particular, made no reference to any fear of absconding. On the basis of the material then before the Court, it was not surprising that the application was refused on the papers on 21 November. On 19 November, there is a file note by Alison Newman seeking “clarity in writing” on the medication prescribed, with a view to this being seen to be a “relative ‘storm in a teacup’” and assisting with progressing the case to as swift a resolution as possible. It is clear from that note that the correct facts were still not known by the Agency. On 20 November 2008, the Claimant’s solicitors wrote to the Treasury Solicitor questioning the use of Malarone for an infant under 11 kg in weight, given its high level of toxicity. They also pointed out that mefloquine ought to be administered to infants and that this would take 2-3 weeks of administration to establish prior to travel and sought reconsideration of the matter. The letter referred to the relevant passages in the IDI which I have set out above and pointed out that they had not been followed R (oao Nukajam) v. Secretary of State for Home Department The Deputy Healthcare Manager at Yarls Wood wrote again on 20 November explaining that the children were all well and that all had been offered and accepted malaria prophylaxis on 8 November. The letter did not explain which drug had been administered or what the relevant period before travel was and did not correct the mistaken understanding that Malarone had been administered. This replicated the terms of a telephone conversion of the same date recorded on the Agency file. However, the clarity sought by Alison Newman on 19th was not provided since all that was referred to was anti-malarial treatment generically. During this process, there had been received representations from the Claimant’s MP which had been treated by the Agency, according to the files, as a “non priority case” with a target date of 3 December (file entries for 24 November). With reference to the Agency’s notes, it is apparent that there is little mention of the appropriateness of the continued detention of the children as a specific issue other than a note of a family case conference call on 24 November referred to the health and “no immediate concern about twins and baby. Mother and father were parenting appropriately and meeting needs of children”. In accordance with the shortened timescale ordered by David Holgate QC on 21 November, an application to renew the claim for permission was made on 24 November, referring to the need for an appropriate period before travel, and accompanied by a letter to the Treasury Solicitor repeating the concern about the need for an appropriate period for prophylaxis before travel, reminding the Defendant of the need for a response to the letter of 20 November. Disclosure was sought of all communications on the healthcare issues. This was chased by a faxed letter of the same date to the Treasury Solicitor which noted that the Healthcare Unit had confirmed that day that they would prescribe Mefloquine and that this would take 2-3 weeks of administration to establish prior to removal. Finally, on 25 November the same Deputy Healthcare Manager at Yarls Wood faxed “Further to our conversation I am writing to clarify the following points. R (oao Nukajam) v. Secretary of State for Home Department Mefloquine is the only malaria prophylaxis that has been prescribed to the above children, which according to Home Office Guidelines is correct for the region to which the family are due to return.” Having referred to the guidance that the drug should be given 2-3 weeks prior to “A 14 day supply of mefloquine was prescribed on the 6th November 08. It was represcribed for a further 14 days on 20th November. Initially, Mr. Nukajam refused to accept the second supply of medication as he believed it was not the same drug as he had been given previously. After talking to Healthcare staff he accepted the drug on 24th November. I met with Mr Nukajam this morning to reassure him that the correct treatment had been given and that the treatment had not been changed. He accepted this and said he is happy to continue giving his children the mefloquine as prescribed.” It was now clear that the earlier information which had been given to the Agency was incorrect and that the IDI guidance had been followed in respect of medication but not in respect of the consideration of the time for removal. The Claimant and his family sought bail, which was opposed by the Agency, substantially for the reasons set out in the earlier IS91Rs. The Immigration Judge disagreed and granted bail on 26 November 2008, reviewed on 2 December 2008, on conditions requiring residence at a specified address in Stoke on Trent and regular reporting to the local police station. Sureties were also given. Bail was continued following a further hearing on 23 December, on the same conditions as previously applied. It is common ground that those conditions have been complied with. The Bail Summary form completed on 25 November which sets out the reasons for opposing bail. I note that under “Criteria for detention” the following matters are “1. Any evidence of previous absconding from detention? – No 2. Any evidence of previous failure to comply with conditions of temporary admission/release from bail? – No” Under the “Reasons for Opposing Bail” the Agency focussed on the adverse findings with regard to credibility by the AIT, the failure to leave the UK when required, knowing breach of immigration rules, attempts to frustrate the legitimate enforcement R (oao Nukajam) v. Secretary of State for Home Department of immigration control and behaviour not consistent with a person likely to voluntarily comply with their own removal. It was stated: “2. In the bail grounds it is stated that the Applicants have no history of absconding.” It was then said that the fact that the Claimant had had failed to make himself known to immigration officials for 15 months, “only being encountered following an immigration enforcement visit to commercial premises” led to the conclusion that he was “deliberately attempting to avoid immigration enforcement action” and it would have been highly unlikely that but for the chance encounter in the enforcement visit that the Claimant would ever have made himself known of the Agency. This led to the conclusion, it was submitted, that the Claimant “cannot be relied upon to comply with any conditions that may be attached to the granting of bail.” The Reasons did not mention, or attempt to grapple with the compliance with the condition imposed on the grants of temporary admission in June or September 2008 or why, at this stage any more than in September, there was now a risk of absconding or of failing to meet residence and reporting conditions. Alison Newman’s later witness statement did not seek to address that significant deficiency in the reasons or In respect of the renewed application for permission the Claimant’s skeleton argument in essence made the same claim as is made before me regarding unlawful detention. The Defendant filed a skeleton argument opposing the renewal application dated 21 January 2009 which set out a significantly different basis for opposing permission than had appeared in the Summary Grounds. It was now contended that the application was academic since (although not expressed in these terms) an error had been made by Serco Health in referring to Malarone in the October correspondence, the correct medication had been administered and the Claimant had been released on bail. The skeleton argument stated that following a further letter from the Deputy Healthcare Manager at Serco Health, Yarls Wood, dated and faxed on 25 November 2008 it had now been confirmed that, in fact, it had been mefloquine which had been administered in accordance with the Home Office guidelines and not Malarone, as R (oao Nukajam) v. Secretary of State for Home Department had previously been stated. Mefloquine had been administered on 6 November and 24 “I met with Mr Nukajam this morning to reassure him that the correct treatment had been given and that the treatment had not changed. He accepted this and said he is happy to continue giving his children the mefloquine as prescribed.” Permission was then granted on 23 January 2009 since the question of the legality of the detention which had occurred was not an academic issue. The question of the review being academic was rightly not pursued before me. As far as the Court is aware, no further documentation, or any evidence at all, was provided by the Defendant until late in the afternoon of 15 December 2009, the day before that which had been fixed for the hearing of the judicial review. No detailed grounds setting out the Secretary of State’s case was served at any time so that the case in the Summary Grounds, which had plainly been overtaken by events as set out in the skeleton argument of 21 January, were not updated and the skeleton itself (based solely on the argument that the case was now academic) did not assist. It was only late on the day before the hearing that a new skeleton was served, together with the Defendant’s evidence, which for the first time clarified the Defendant’s case following the grant of permission. It also produced new documentation for the first time which ought to have been provided in good time following the grant of permission in order that the Secretary of State could discharge his duty of candour. On any view, this was unacceptable, and might have provided a rare instance of this Court ordering disclosure against the Defendant in judicial review proceedings and adjourning the hearing, no doubt at further cost to the public purse. However, given the circumstances and the nature of the defence now being presented to the Court which Mr Goodman, fairly accepted he was able to deal with, I considered that the interests of justice were best served by continuing with the hearing although on the footing of assurances from the Defendant through Mr Barnes that all relevant material had now been produced and the Defendant would provide a witness statement to that effect within a few days of the hearing. I also made it clear that on the basis of the material now before the Court I would not be willing to assume that there was any basis for detention in September 2008 other R (oao Nukajam) v. Secretary of State for Home Department than the expressed reason of imminent removal unless further evidence were advanced by the Defendant, at which stage the Claimant might wish to renew its application to adjourn. Mr Barnes did not seek to persuade me that there was any basis for not making that assumption or that any significant material to explain the Agency’s decision existed other what was before the Court. As it happened, and despite the assurances and the witness statement (which provided yet further documentation required to comply with the duty of candour which was commented on by the Claimant in writing on 22 December), further material was disclosed by the Defendant by e-mail to the Court and to the Claimant’s representative at 4.45 pm on 30 December. Since these latter documents were not required by the Court, and were said not to be relevant to the duty of candour, but only in response to an FOI request and the Claimant’s acceptance of an offer of further disclosure in the Defendant’s witness statement, I am unsure why they were served at that time. The Claimant made it clear that he did not wish to be given further time to obtain and examine that documentation prior to my giving judgment. Following further representations by the parties by e-mail in the week of 4 January 2010, I conclude that I need not refer to them since they do not advance the issues in the claim significantly further than the documents already in the bundles. I propose to say no more other than to record that these regrettable circumstances only occurred because the Secretary of State failed to comply with the Civil Procedure Rules and the Part 54 PD regarding the time for service of evidence, detailed grounds and skeleton argument and because at a late stage after the hearing the Defendant appears to have offered voluntary disclosure, having opposed disclosure before me.
The Issues
Whether the reasons given at the time for the detention, and continued detention, of the Claimant and his family were lawful; Whether, if the answer to i) is in the negative, there were other circumstances which made the detention nonetheless lawful; and R (oao Nukajam) v. Secretary of State for Home Department Whether the circumstances amount to the tort of unlawful imprisonment and/or breach of Article 5 of the European Convention of Human Rights An application by the Claimant to add other members of his family as Claimants, which was said at the renewed permission hearing to require a further application, was not made before me as I was told it was considered likely that in the event of success any future claims by others in the family could be settled in the light of the judgment in this case. Although the claim has been brought only by the Claimant, the case has been argued on the footing of the material applicable to the Claimant, his partner and their family as a whole. In any event, the position of the children is in my judgment inevitably relevant to the position of their father whose detention at least in part is Paragraph 2 of Schedule 2 to the Immigration Act 1971 (“the 1971 Act”) gives an immigration officer power to examine a person who has arrived in this country to determine whether or not he should be given leave to enter. Paragraphs 8 and 9 of that Schedule give an immigration officer power to give directions for the removal of an immigrant who has been refused, or who has not been given, leave to enter the United Paragraph 16 of Schedule 2 to the 1971 Act provides, so far as relevant: “16. (1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter. (2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any paragraphs 8 to 10 or 12 or 14, that person may be detained under the authority of an immigration officer pending - (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.” It appears to be common ground that ‘pending’ means ‘until’ and that the power of the Defendant to detain is not unfettered, The power is limited in that it may only be R (oao Nukajam) v. Secretary of State for Home Department exercised for the purpose for which the power exists, and it may only be exercised during such period as is reasonably necessary for that purpose. See R(A) v SSHD
Paragraph 21(1) of Schedule 2 to the 1971 Act provides, so far as relevant: “21. (1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him. (2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, [as to his employment or occupation] and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.” Paragraph 1(3) of Schedule 2 to the 1971 Act provides that: “In the exercise of their functions under this act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules)) as may be given them by the Secretary of State” It was common ground that the IDI (to which I have already made reference) form one set of such instructions which Immigration Officers are required to follow. The well-known principles enunciated by Woolf J. in R v Governor of Durham
Prison ex p Hardial Singh [1984] 1 W.L.R. 704 as constraining the Secretary of
State’s otherwise open-ended powers of detention, were summarised in R (I) v SSHD
“46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh [1984] 1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment . the following four principles emerge: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; R (oao Nukajam) v. Secretary of State for Home Department iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.” I will, in due course, assess whether in the circumstances here the Secretary of State complied with the Hardial Singh principles having regard, in particular, to the fact
that detention of the Claimant inevitably carried with it here the detention of his Article 5 of the ECHR is also applicable. Article 5(1) prohibits detention that is not in accordance with a procedure prescribed by law or is otherwise arbitrary. It does not appear to be disputed that if I find the detention to be unlawful then this would also Government policy on the detention of families with children has been set out in a number of white papers and ministerial statements which were helpfully summarised by Wyn Williams J. in R (S,C and D) v. SSHD [2007] EWHC 1654 (Admin):
R (oao Nukajam) v. Secretary of State for Home Department “It is common ground that before October 2001 the Defendant's policy
was that families with children could only be detained in exceptional
circumstances and for a few days under Immigration Act powers. That
policy was set out in the White Paper of July 1998 entitled "Firmer,
Faster, Fairer
". The Policy was encapsulated in the following
quotation: -
"The detention of families and children is particularly regrettable, but is also sometimes necessary to effect the removal of those who have no authority to remain in the UK, and who refuse to leave voluntarily. Such detention should be planned to be effected as close to removal as possible so as to ensure that families are not normally detained for more than a few days." In February 2002 the White Paper entitled "Secure Borders, Safe
Haven"
was published. It is also common ground that this White Paper
signalled a shift in policy. In paragraph 4.77 of the Paper the following
appeared:
"Families can in some instances give rise to the same problem of non-compliance and thus the need to detain as can be encountered with single adults. Naturally there are particular concerns about detaining families and it is not a step to be taken lightly. Although true of all decisions to detain, it is especially important in the case of families that detention should be used only when necessary and should not be for an excessive period. It was previously the case that families would, other than as part of the fast-track process at Oakington Reception Centre, normally be detained only in order to effect removal. Such detention would be planned to take place as close to removal as possible so as to ensure that families were not normally detained for more than a few days. Whilst this covered most circumstances where detention of a family might be necessary, it did not allow for those occasions when it is justifiable to detain families at other times or for longer than just a few days. Accordingly, families may, where necessary, now be detained at other times and for longer periods than just immediately prior to removal. This could be whilst their identities and basis of claim are established, or because there is a reasonable belief that they would abscond. Where families are detained they are held in dedicated family accommodation based on family rooms in Removal Centres. No family is detained simply because suitable accommodation is available." Government Policy on the detention of families with children was the subject of debate in the House of Commons on 8th May 2003. During the course of that debate the then Minister for Citizenship and Immigration, Beverley Hughes MP, summarised Home Office Policy in relation to the detention of minors. She said: "I welcome the opportunity to put on record the Government's policy and practice on the issues [concerning the detention of asylum seeking families and children]……. My Hon. Friend is right to say that, prior to October 2001, families with children were detained under those powers [the Immigration Act 1971] but, as a matter of policy rather than law using qualified detention criteria that meant that families would be detained only to go through the Oakington fast-track asylum process or for one or two days immediately prior to removal. He is also right to say that in October 2001, it was decided to remove this qualification and to allow for the detention of families under the same detention criteria as others. That was done in recognition of the fact that families – or the adults in families, anyway – can give rise to the same concerns as single adults, in terms of absconding or frustrating removal. R (oao Nukajam) v. Secretary of State for Home Department I entirely reject my Hon. Friend's assertion that families are targeted for detention or that they are detained except in the most exceptional circumstances or for the shortest periods of time……. I am deeply sympathetic to the concerns about the detention of children. It is not something we do easily or gladly and it is certainly not our intention – or our practice – that children should be in detention for prolonged periods………." In a debate in the House of Lords on 18th May 2004 Lord Bassam of Brighton also summarised "general government policy with regards to children". He said: - "However, as we have made plain on many occasions, it is a regrettable fact that some families with children can give rise to the same immigration and asylum concerns as single adults, particularly in terms of failing to leave the UK voluntarily when they have no lawful basis of stay here. The detention of some families may therefore sometimes be necessary as part of maintaining an effective immigration control and asylum system. We cannot exclude families with children from those controls. Having said that, I must stress that overall very few families are detained and that most of those who are detained are held very briefly just prior to their removal from the UK. There is a presumption in all cases in favour of granting temporary admission or release, and each case will always be considered on its merits." .” Article 3 of the United Nations Convention on the Rights of the Child (“UNCRC”) "1. 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. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, and in the number and suitability of their staff, as well as competence supervision." 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 period of time.” These provisions do not have direct effect in English law. However, having considered those provisions, Wyn Williams J. held in S,C and D:
R (oao Nukajam) v. Secretary of State for Home Department “I am prepared to accept for the purposes of this judgment that Article
5 ECHR should be read in the light of Articles 3 and 37(b) UNCRC. It
seems to me that accords with the body of authority quoted in
paragraph 4.8 to 4.13 of the Claimants' Counsels' Skeleton Argument. I
refer in particular to Loizidou v. Turkey (1995) 20 EHRR 99, Mitunga
v. Belgium
(Application 13178 12/10/2006) and R(SR) v Nottingham
Magistrates Court
[2001] EWHC Admin 802.”
I propose to adopt the same approach as Wyn Williams J. which was not disputed by The Home Office Code of Practice for Keeping Children Safe From Harm (April 2009) produced pursuant to section 21 of the UK Borders Act 2007 also makes provision for minimising any impacts on children in its actions. Government policy published in Chapter 55 of the Enforcement Instructions and Guidance (which has replaced Chapter 38 of the Operations Enforcement Manual, considered by Wyn Williams J.) has continued to stress the importance that detention be used sparingly and only where necessary and for as long as necessary. There is authority to the effect that detention may not be unlawful even if aspects of the reasons or the decision are unsatisfactory if good reasons nonetheless existed for the detention. While there may be some uncertainty as to the status of the line of authority in considering unlawful imprisonment claims, and I am told that it is presently under consideration by the Court of Appeal in Abdi, it is accepted by the
Claimants that I should nonetheless consider it applicable. In R (Nadarajah & Amirthanathan) v. SSHD [2004] INLR 139, the Court of
Appeal considered the effect of detention under a policy to the effect that persons would only be detained where their removal was “imminent”, with the qualification that removal would not be treated as imminent where an intimation was made by a solicitor that they intended to pursue judicial review. However, an unpublished caveat to that policy provided that removal would not be treated as imminent unless judicial review proceedings had in fact been issued. The Court of Appeal held that the unpublished policy was unlawful by reason of having been unpublished and the claimants had been detained despite notifying the Secretary of State of their intention to initiate judicial review proceedings. Lord Phillips MR, giving the judgment of the R (oao Nukajam) v. Secretary of State for Home Department “53. The number of those who seek asylum in this country is currently so great that it is not possible to process all applications swiftly. Nor are there sufficient facilities to detain those seeking asylum, or those who have been refused asylum pending their removal, even if this were considered desirable. In selecting some, but not others, for detention the Secretary of State must not act in an arbitrary fashion. He must justify the selection that he makes. 54. Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary. Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of State's published policy, which, under principles of public law, he is obliged to follow.” Having concluded that the removal was not imminent on the basis of the published policy, Lord Phillips considered that the Secretary of State could not rely on the “68. . Those acting for N could reasonably expect, having regard to those aspects of the Secretary of State's policy that had been made public, that N would not be detained on the ground that his removal was imminent. The only basis upon which the Immigration Service could treat his removal as imminent was by applying that aspect of the Secretary of State's policy which had not been made public, namely that no regard would be paid to an intimation that judicial review proceedings would be instituted. The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public. ” In the second case (Amirthanathan) Lord Phillips held: “71. It is clear, on the evidence, that the reason why A was detained was in the hope that, by ensuring that he had an interview with the Sri Lanka High Commission, the documentation would be obtained that would enable his prompt removal to Sri Lanka if and when his appeal failed. This did not fall within the Secretary of State's policy, as made known to A and his solicitors. 72. Had the Secretary of State included in his policy, as a reason for detention, ‘to facilitate documentation needed for removal’ we do not believe that any objection could have been made under Article 5. Equally, had he published his policy to disregard an intimation that proceedings would be initiated, for the purposes of deciding when removal is imminent, he would have been in a position lawfully to detain A for that reason and the additional reason that detention was necessary for documentation purposes. In the event, however, the detention was unlawful for the same reason that N's detention was unlawful. It was at odds with the Secretary of State's policy, as made public.” R (oao Nukajam) v. Secretary of State for Home Department In R (D & K) v. SSHD [2006] EWHC 980 (Admin), Davis J. considered claims for
“108 It is common ground that the fact that D and K were wrongfully denied a medical examination within 24 hours of admission contrary to Rule 34 does not of itself mean that they were wrongfully detained. It is common ground that it is for each of D and K to show that had they received (as they should) such examination within 24 hours then they would have been released at an earlier time than in fact they were. It is common ground that this issue of causation is to be assessed on the balance of probabilities: these are not “loss of chance” cases. 109 An illustration of a case — on facts very different from the present — where damages were awarded for what was found to be unlawful continuing detention at Oakington is to be found in the decision in Johnson (Renford) [2004] EWHC Admin 1550 . In that case it was found that by 17th June 2003 it should have been apparent that the detainee's claim was not going to be adjudicated upon within the time scale set out in the Oakington Policy. The detainee was not in fact released until 15th August 2003. He was awarded damages for his unlawful detention in that period.” (See also R (PB) v SSHD [2008] EWHC 364 (Admin) at paras. 18-27.)
In D v. SSHD [2006] 1 W.L.R. 1003 Brooke L.J. held at para. 110:
“110 Mr Catchpole also submitted that we should bear in mind the consideration that, when the Administrative Court quashes a decision of an immigration officer on the grounds of public law error, there will be nothing to stop him making the same decision, this time by a lawful route. It appears to me that the answer to this objection lies in the field of causation. In Nadarajah's case this court held that if the immigration officers' decisions had not been tainted by their failure to disclose the policy on which they relied, the applicants' lawyers would have ensured that legal proceedings would have been in fact initiated, and not merely threatened, if this was what was needed to prevent their clients' detention. In Saadi's case [2002] 1 WLR 3131, para 48, on the other hand, Lord Slynn observed that the failure to give the right reason for the detention, and the giving of no reasons, or the wrong reasons, on the form delivered to the claimants, although procedurally inept, did not affect the legality of their detention.” Davis J. returned to the causation issue in Abdi & Others v. SSHD [2008] EWHC
3166 (Admin) at paras. 129-147 and concluded, on the basis of the authorities, that he should consider whether the unlawful act relied upon (introduction of an unlawful and unbpublished policy) “in fact caused each claimant unjustifiably and unlawfully to be R (oao Nukajam) v. Secretary of State for Home Department detained.” In this respect, Davis J, drew support not only from his earlier decision in D & K but from Saadi, Nadarajah, D, and R (SK) v. SSHD [2009] 1 W.L.R. 1527.
In SK, the Court of Appeal considered whether monitoring was mandatory and held
that they were desirable in terms of ensuring that the Hardial Singh principles were
fulfilled but were not one of those principles itself. Laws L.J. in setting out his conclusions on this issue at para. 35 ended with the following: “. (iii) It is elementary that the power's exercise, being an act of the executive, is subject to the control of the courts, principally by way of judicial review. So much is also required by Convention article 5(4) . The focus of judicial supervision in the particular context is upon the vindication of the Hardial Singh principles. (iv) In the event of a legal challenge in any particular case the Secretary of State must be in a position to demonstrate by evidence that those principles have been and are being fulfilled. However the law does not prescribe the form of such evidence.” Laws L.J. then considered the facts and held at para. 40 that “It is to my mind plain that the claimant was lawfully held in compliance with the Hardial Singh principles throughout the period of his detention.” Keene L.J. “with some hesitation” agreed that the breach of the Rules and Manual did not render the detention unlawful. Longmore L.J. also agreed. It therefore seems to me that, pending further consideration of the issue by the Court of Appeal or Supreme Court, the question I should ask myself is whether the errors, which I identify below, made in respect of IDI in fact caused the Claimant and his family to be unlawfully detained. If those errors did not have such an effect, then it plainly would be contrary to common sense and principle to find unlawful detention as resulting from the mere fact of those errors. If I find on balance of probabilities that they would have been detained in any event, and such detention would have been lawful, then I should conclude that, despite the errors, that the detention was The tort of false imprisonment
The two ingredients of the tort of false imprisonment are R (oao Nukajam) v. Secretary of State for Home Department Absence of lawful authority for that imprisonment.
In R v. Deputy Governor of Parkhurst Prison, ex p. Hague [1992] 1 A.C. 58, 162C-
“An action for false imprisonment is an action in personam. The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. In Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44, 54, Atkin L.J. said: "any restraint within defined bounds which is a restraint in fact may be an imprisonment." Thus if A imposes on B a restraint within defined bounds and is sued by B for false imprisonment, the action will succeed or fail according to whether or not A can justify the restraint imposed on B as lawful. A child may be lawfully restrained within defined bounds by his parents or by the schoolmaster to whom the parents have delegated their authority. But if precisely the same restraint is imposed by a stranger without authority, it will be unlawful and will constitute the tort of false imprisonment.” Detention for immigration purposes is imprisonment in fact. So much is established here for the period until bail was granted. The issue in the present case is whether there was an absence of lawful authority for some or all of the period of detention. The Parties’ submissions
The Claimant contends that the whole period of detention from 5 November until the Claimant was released on bail was unlawful since: It failed to give due effect to the IDI guidance on malaria prophylaxis and the period to be allowed prior to removal for the drug which was administered, namely mefloquine. The detention had been based on the imminence of departure, which could not have been correct had the IDI been properly applied to the circumstances. The detention was based on the misunderstanding that Malarone was administered, which only required a few days for preventative treatment to take effect. This was a material error of fact and itself a ground for review: see per Carnwath L.J. in E v. SSHD [2004]
It followed that the basis for detention was incorrect and was in breach of the IDI and therefore the Agency had failed to act in accordance with the Defendant’s instructions as required by para. 1(3) of Schedule 2 to the 1971 R (oao Nukajam) v. Secretary of State for Home Department Act. It followed that the detention was unlawful and also in breach of article 5 of the ECHR. See Nadarjah.
It was not in any event reasonable for the Claimant and his young family to be detained on 5 November 2008 when they could not be removed for a period in excess of 3 weeks, given than mefloquine was not first administered until 6 November 2008. In considering whether the period was a reasonable one, the fact that the Claimant’s family included three children, one of only 6 months in age, made it all the more important that detention should be restricted to the minimum practicable period. Such a period was not that which had occurred here nor could it have been a reasonable period viewed as from 5 November given the requirements of the IDI as applicable to mefloquine. See R (S, C &
D) v. SSHD, R (D & K) v. SSHD and the authorities referred to above.
The Agency itself had considered that it was not reasonable to detain the Claimant and his family after the failed removal in September 2008 but had released them on the grant of temporary admission and bail. Even with respect to the time the later period of detention was ended with the grant of bail, there was no evidence from the Secretary of State with regard to when removal Moreover, there was no reasonable basis for concluding that there was a likelihood that the Claimant would abscond. The conditions on the recent grants of temporary admission had been complied with, even when it was clear to the Claimant that the Agency was actively pursuing removal, and even though they followed the arrest of the Claimant who had been found to be working unlawfully. This view was reinforced by the rejection by the Immigration Judge of the reasons advanced by the Agency for opposing bail and the grant of bail on 26 November 2008. It followed that the Hardial Singh principles were breached in the present
case and the Court should hold on the evidence that the detention of the Mr Barnes, for the Secretary of State, for understandable reasons did not seek to defend the original basis for detention but argued that it was appropriate for me to R (oao Nukajam) v. Secretary of State for Home Department consider the detention as lawful if, in any event, there were lawful reasons for detaining the Claimant and his family. He relied on the line of authorities dealing with causation which, while they are currently subject to consideration by the Court of Appeal in Abdi, were accepted by Mr Goodman as applicable in the present
He submitted that detention and the period of detention were reasonable given that: As set out in the reasons advanced by the Agency in opposing bail before the Immigration Judge and there was a propos basis for lawful detention and that the likelihood of absconding was duly made out, notwithstanding the grants of temporary admission by the Defendant to the Claimant in 2008, the compliance with the conditions attached to those grants or the grant of bail in The Claimant and his family faced “imminent” removal, which was not confined to immediate removal or where removal directions were in force – R
(Ahmed) v. SSHD [2008] EWHC 1533 (Admin) paras. 14-15. A timescale of
28 days, where an expedited judicial review is ordered, may still enable the Defendant to conclude that removal is “imminent” – R (Mpasi) v. SSHD
[2007] EWHC 2562 (Admin) at paras. 55-56. The Claimant had a history of having not been believed by the Asylum and Immigration Tribunal, of overstaying, and of working without permission. The Claimant’s partner had a history of entering on a false passport, of having not been believed by the Asylum and Immigration Tribunal, and of overstaying. Accordingly, with removal “imminent”, there was good reason to It was necessary to provide the Claimant’s children with malarial prophylaxis before they were removed, and necessary to detain them for that purpose, despite their age, given the risk of the Claimant and his partner absconding with them when it became plain that removal was to be enforced within a short R (oao Nukajam) v. Secretary of State for Home Department Accordingly, whilst the removal directions set for 10 November 2008 could not be effective due to the prescription of mefloquine, it was plainly lawful for the Defendant to detain the Claimant and his family on 5 November 2008, in order to provide them with mefloquine on 8 November 2008, and remove them a few weeks thereafter. That submission was qualified by the concession made by Mr Barnes during argument that it was not necessary for the family to be detained simply in order for the anti-malarial treatment to be administered and Whilst the issue of these judicial review proceedings presented a temporary barrier to the removal of the Claimant and his family, the Defendant reasonably expected the judicial review to be expedited, with it brought to a conclusion, or permission granted, within a few weeks, at which point the Claimant and his family could be removed, or if permission was granted, a decision could be made as to their ongoing detention. At no time prior to the release of the Claimant and his family by the Asylum and Immigration Tribunal on 26 November 2008 had their detention become unreasonable given the risk of them absconding, and accordingly it was at all These reasons appeared for the first time in the proceedings in the skeleton argument and witness statement served the day prior to the hearing of the judicial review. I therefore turn to consider those submissions in more detail in the light of the The lawfulness of detention
In my judgment the original reasons for detention cannot be supported since there was a failure to act in accordance with the IDI, and thus para. 1(3) of Schedule 2 to the 1971 Act, as a result of the unsatisfactory and erroneous communications between Serco Healthcare at Yarls Wood and the Agency, which (despite a number of requests from the Claimant’s representatives) were not cleared up until Serco’s letter of 25 November 2008. Had the Agency been accurately informed of the anti-malarial treatment which had actually been administered at Yarl’s Wood it must have R (oao Nukajam) v. Secretary of State for Home Department understood from the IDI that removal could not be effected by 10 November but, instead, not for at least a period of 3 weeks as the IDI advised. It seems to me that there are a number of possible analyses of the result, either a breach of legitimate expectations that the IDI would be properly followed, or simply a breach of the requirement of para. 1(3) of Schedule 2. It also seems to me that the circumstances fall within the categories of actionable mistakes of fact as described by Carnwath L.J. in E v. SSHD at para. 66:
“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.” It seems to me plain, in the circumstances I have described that the four requirements set out by Carnwath L.J. are all met in the present case. The real question, therefore, is whether it is correct, as the Secretary of State contends, that I should consider the detention as nonetheless lawful because there were justifiable reasons for detention regardless of the errors which undoubtedly occurred. This means that I have to be satisfied on balance that on 5 November, and following, the Secretary of State had justifiable reasons for detaining the Claimant In my judgment, the Hardial Singh principles were not complied with in the
circumstances of this case and I do not consider that detention was justified for other reasons and in any event lawful. I consider that the period of detention was not lawful judged both as at the time it was begun and during the period prior to the grant of bail. R (oao Nukajam) v. Secretary of State for Home Department Firstly, the basis on which the Defendant purported to detain the Claimant and his family, namely to effect imminent removal on 10 November, was in error since the Agency wrongly assumed that the administration of malaria prophylaxis would allow travel within a short period of time from the commencement of detention. That in itself is a clear indication of the period which the Agency itself considered to be necessary to effect removal, had it been correct as to the medication - namely a period Secondly, had the Agency been correctly informed of the medication which was to be administered, namely mefloquine, it should have considered: Whether detention was reasonably necessary at all at that stage, given the concession by Mr Barnes that it was not necessary in order for the medication Whether it was reasonable to detain the Claimant and his family for a period of at least three weeks to allow malarial prophylaxis to be established (depending on when administration of the medication began) having regard to the fact that the family unit included three very young children, one who was only six months old, and the guidance as to detention of families with children. The mistake as to the administration could not, of course, itself make the detention What the relevant circumstances were with regard to detention, including the previous grants of temporary admission subject to conditions, and compliance with those conditions, in the light of the failure to effect removal less than two Thirdly, in the context of those issues, I conclude on balance that it was not reasonable to conclude on these facts that either removal was imminent or that that there was a likelihood of absconding or that in any event the period of time likely to pass between the commencement of detention and removal was in any event reasonable given the circumstances especially including the presence of three young children. These are not matters to be determined by any rules of thumb, or expressions as to what was a reasonable period in other cases dealing with different facts, but on R (oao Nukajam) v. Secretary of State for Home Department In considering the reasons advanced by the Defendant I remind myself of what Dyson L.J. said in R (I) v. SSHD at paras. 53-54 regarding the risk of absconding:
“53. But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake. 54. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he or she will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference.” Added to those general considerations here is the specific and important consideration of the children and the Secretary of State’s own advice to the effect that: Families that are detained are held very briefly just prior to their removal from the UK. There is a presumption in all cases in favour of granting temporary admission or release, and each case will always be considered on its merits. Removal directions should be dependent on any pre-departure element of anti- In considering these matters it seems to me that the detention of children is not something which should ever be lightly countenanced or allowed to continue except in such circumstances which clearly justify it and which do not reasonably permit of Those policy considerations are strongly reinforced by the UNCRC, as Wyn Williams J. held in S, C & D, which informs the correct approach to Article 5 and by the
Strasbourg in Yousef v. Netherlands (2003) 36 E.H.R.R. 20, at paragraph 73,
stressing (albeit in the context of article 8) the paramount nature of the interests of children when balancing competing considerations. It seems highly improbable that lesser weight should be accorded to children’s interests in the context of Convention R (oao Nukajam) v. Secretary of State for Home Department I do not consider that, having regard to all the circumstances including compliance with conditions attached to the grants of temporary admission, specifically following the first attempt at removal, the judgments themselves of the Agency on at least two occasions to grant temporary admission that there was no real likelihood of absconding. This is a case where the risk of absconding has clearly been overstated. Indeed, into that consideration must also come the fact that following his arrest as an overstayer in June 2007 there was no attempt at absconding and that the Claimant was also in part responsible for three very young children, in respect of which he had shown some persistence in ensuring they received the correct anti-malarial treatment and prophylaxis when removal seemed likely. While Mr Barnes pointed out that the grant of temporary admission in September took account of the fact that removal was likely to take some time, this seems to me to amount to little more than an acknowledgment that the circumstances did not justify an extended period of detention of even some five or six weeks (as MEU’s note indicated). I am unimpressed at the continued reliance on the risk of absconding and the other weaker factors (absence of family ties, no lawful reason for staying in the UK etc) stated in the 10 November reasons and in the grounds for opposing bail. I have already set out the unsatisfactory way in which the question of the risk of absconding was dealt with by the Agency both internally and in seeking to oppose the grant of bail in November 2008, in contrast with the view taken by MEU on 26 September. At no stage did it, or I conclude could it, fairly dispute that it had not itself considered there to be such a risk when it granted temporary admission on two occasions earlier in 2008 and that the conditions imposed on those grants had been complied with. What is sought to be done is to rely on the immigration history of the Claimant and his partner, the rejection of their cases by the AIT, adverse inferences as to credibility, absence of voluntary removal and the like – as before the Immigration Judge on the All of the matters relied on now and in opposing bail were present and known to the Agency when temporary admission was granted in 2008, including at the sensitive time in late September when an attempt (with detention) had already been made to remove the Claimant but it was considered unacceptable to detain the family further to await removal. Further, as was accepted in the bail summary, the conditions had R (oao Nukajam) v. Secretary of State for Home Department been complied with, which in my judgment undermined the later submission that any conditions (which were likely to be reporting and residence conditions) would not be complied with if imposed on the grant of bail. In my judgment, the grant of bail by the Immigration Judge was plainly justified and it lends support to the conclusion I have reached. I consider that the Agency’s opposition to bail was little more than an ex post facto attempt by MEU to retrieve the situation following the confusion and error which had arisen (entirely the responsibility of the Agency and its contractor) and at a time when, in the case of the 10 November reasons, it was still thought that removal could be effected quickly once the judicial review was dealt with. The persistence shown in opposing bail and maintaining the allegation of the risk of absconding seems to me to have been misjudged and failed to properly into account the consequences in terms the children. The fact that there were discrepancies in the reasons for detention given in the various detention notices from September onwards are not decisive, although I do consider the absence of a clear basis for assuming a risk of absconding is significant. For example, the Claimant’s form completed on 22 September simply relies on the imminence of removal. However, in view of the matters set out above, the limited references to the likelihood of absconding do not encourage me to view with favour the poorly supported argument that I should treat all decisions which have preceded my own (including those of the Agency itself to grant temporary admission) as being wrong assessments that the Claimant and his family should not be detained. It is a disturbing feature of this case that it should have proceeded as it did and that, at the end, the Defendant’s case for the detention of a young family should turn on the submission that all prior assessments before this Court, including the two grants of temporary admission and the decision of Immigration Judge to grant bail were wrong. It might have been expected that more substantial reasoning would be put forward to justify the detention of a family with young children than the case which was finally presented to this Court. Nothing of substance, or any material change of circumstances, was advanced to counter the assessment the MEU itself reached on 26 September when temporary admission was granted following the failure of the earlier R (oao Nukajam) v. Secretary of State for Home Department “It is not sustainable to detain this family for another 6 weeks simply to wait for a flight. They have young children and as far as I can tell from CID a positive reporting history. Please release on TR with reporting for adults. A Newman agreed.” Moreover, when I take into account the position of the children who were at least in part dependent on the Claimant, and on whose immigration status they would depend, I find that the period of detention which ought properly to have been in contemplation on 5 November 2008, namely some 3 weeks, to have been unreasonable and The fact that there may be family accommodation available, or that the children remain well during the period of detention, cannot justify detention longer than is reasonably necessary to effect removal. There was no evidence from the Secretary of State which would support the view that, even taking account of the interests of the children, a period of some detention of some three weeks or more would be reasonably necessary in order to effect removal. Indeed, the fact that the family was only detained some five days prior to the anticipated date of removal reinforces the conclusion that a period well in excess of that could not be justified. Indeed, it is fair to assume that in setting that five day period the Agency was seeking to give effect to the Defendant’s policy with regard to the detention of families with children, as seems also to be indicated by the MEU file note of 26 September at that time. It should have been apparent at the latest by the time mefloquine was actually administered on 6 November, and probably before, that the Secretary of State would not be able to effect deportation within the period originally set, or within a reasonable period given the children, and either he should not have sought to exercise the power to detention at all or at worst released the Claimant and his family shortly after 6 November. Since the error over the drug was clearly begun prior to the commencement of detention I am prepared to conclude on balance that had proper attention been given to the anti-malarial treatment the Secretary of State would not have sought to detain the Claimant and his family at all at that stage but reset the date having regard to the IDI provisions and the need to keep the period to the minimum given the presence of three young children. I do not consider that expectations of the expedition of the judicial review referred to by Mr Barnes, and much canvassed by the MEU internally during November 2008, R (oao Nukajam) v. Secretary of State for Home Department assist here since, for the reasons I have already given, I do not consider that it was lawful for there to have been detention at all on and from 5 November. In any event, the reliance on that factor during reviews was largely made in ignorance of the true position with regard to the drugs - which still pointed to a date for removal no earlier than the end of November 2008. It is clear from the MEU notes that, given the MP’s intervention, removal would not have occurred until sometime after 1 December 2008. That consideration, absent any clear view or evidence on when removal would take place, when added to the period of detention which had already occurred would have itself made continued detention unreasonable given the young children involved. In the light of the circumstances here, and having regard to the fourth Hardial Singh
principle, I do not consider that the Secretary of State acted with the reasonable diligence and expedition to effect removal. Conclusion
In conclusion, in my judgment there was a breach of the Hardial Singh principles. I
find on the evidence that the original basis for the detention of the Claimant and his family was flawed for the reasons I have given and that there is no other basis on which the Secretary of State can rely that in any event that made the detention of that family lawful as at 5 November 2008 or at any time during their period of detention. The detention of the Claimant and his family from 5 to 26 November 2008, when they were released on bail, was unlawful and in breach of article 5 of the ECHR and he is entitled to a declaration to that effect. I will hear further submissions on the form of relief and the question of damages.

Source: http://landmarkchambers.co.uk/resources/NukajamvSSHD2010EWHC20(Admin)_JudgmentFinal.pdf

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