Neutral Citation Number: [2016] EWCA Civ 373
Case No: C4/2014/1422
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr. Timothy Dutton Q.C.
[2014] EWHC 1169 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 April 2016
Before :

LORD JUSTICE MOORE-BICK
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE McFARLANE
and
LORD JUSTICE BRIGGS
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Between :

	THE QUEEN (on the application of GOMES)	Appellant	
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	SECRETARY of STATE for the HOME DEPARTMENT	Respondent	

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Mr. Raza Husain Q.C. and Ms. Leonie Hirst (instructed by Wilson Solicitors LLP) for the appellant
Mr. Robin Tam Q.C. and Mr. Tom Poole (instructed by the Government Legal Department) for the respondent

Hearing date : 8th March 2016
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Judgment
Lord Justice Moore-Bick : 
1.	The appellant, Mrs. Gomes, is a Portuguese national who entered this country with her husband in April 1998. The couple have three children. In July 2009 at the Crown Court at Kingston-upon-Thames she was convicted of an offence of cruelty towards one of the children, for which she was sentenced to 21 months’ imprisonment.
2.	The custodial portion of the appellant’s sentence ended on 11th July 2010, after which she would normally have been released on licence until the sentence as a whole expired on 26th May 2011. On 8th July 2010, however, the Secretary of State served the appellant with a notice of intention to make a deportation order against her and exercised her powers under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 authorising her detention pending the making of a deportation order against her. As a result, when the custodial portion of her sentence expired the appellant was kept in prison.
3.	The appellant exercised her right to appeal to the First-tier Tribunal, which, by a decision promulgated on 10th January 2011, allowed her appeal. The Secretary of State had a right within ten days to appeal to the Upper Tribunal against that decision, but she failed to do so, with the result that on 20th January 2011 the appellant was entitled to be released. However, on 25th January 2011 the Secretary of State filed a notice of appeal with the Upper Tribunal, which on 7th February 2011 granted her permission to appeal out of time. It is unnecessary for the purposes of this appeal to describe the subsequent course of events other than to say that the appellant remained in custody until 7th March 2012 when the Upper Tribunal granted her bail.
4.	By the present proceedings, which were commenced on 21st December 2011 while she was still in custody, the appellant sought to challenge the lawfulness of her detention. Her claim for judicial review was heard by Mr. Timothy Dutton Q.C. sitting as a Deputy Judge of the Queen’s Bench Division. Before the judge the appellant argued that she had been unlawfully detained for the whole of the period between 11th July 2010 and 7th March 2012 following her successful appeal against the original notice of intention to make a deportation order against her. The Secretary of State argued that she had been lawfully detained throughout the entire period, including the period between 20th January 2011, when time for appealing against the decision of the First-tier Tribunal in her favour had expired, and 7th February 2011, when the Secretary of State obtained permission to appeal out of time. 
5.	The judge held that the statutory power to detain the appellant had lapsed when the time for appealing against the decision of the First-tier Tribunal had expired,  but that her appeal reverted to being pending when the Secretary of State obtained permission to appeal out of time and that the authorisation for her continued detention which followed the Detention Review on 17th February 2011 was sufficient to justify her detention thereafter without the need for any further formal step. However, he also held that as from 2nd September 2011 the appellant could and should have been released to a suitable accommodation address and that her detention thereafter had been unlawful. He therefore granted a declaration that she had been unlawfully detained from 20th January 2011 to 17th February 2011 and from 2nd September 2011 to 7th March 2012 and gave directions for the assessment of damages. He also awarded the appellant 50% of her costs of the proceedings.
6.	This is the appellant’s appeal against the judge’s order. She appeals on the grounds that he ought to have held that, since no formal authorisation had been given for her detention following the success of her appeal to the First-tier Tribunal, she had been unlawfully detained throughout the whole of the period from 20th January 2011 to 2nd September 2011 and that he should have granted a declaration to that effect. Moreover, since she had succeeded on a substantial part of her claim, he ought to have awarded her the whole of her costs. There is a cross-appeal by the Secretary of State on the grounds that no further authority for the appellant’s detention was required once she had obtained permission to appeal to the Upper Tribunal, but that if it was, it was provided by the decisions taken as part of Detention Reviews conducted on 25th January or 17th February 2011.
7.	Paragraph 2(2) of Schedule 3 to the Immigration Act 1971, under which the appellant was detained, provides as follows:
“Where notice has been given to a person in accordance with regulations under Section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of the court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
8.	On 8th July 2010 the Secretary of State authorised the appellant’s detention using form IS91 in the following terms: 
“To: Ms Maria Monica Valente De Achada Gomes Portugal 05 May 1979
Whereas the Secretary of State has decided to make a deportation order under section 5(1) of the Immigration Act 1971 against
Ms Maria Monica Valente De Achada Gomes
a citizen of Portugal who is, at present, detained in pursuance of the sentence or order of a court and is due to be released otherwise than on bail on 11 July 2010
The Secretary of State hereby, in pursuance of paragraph 2(2) of Schedule 3 to that Act authorises any constable, at any time after notice of the decision has been given to the said
Ms Maria Monica Valente De Achada Gomes
in accordance with the Immigration Appeals (Notices) Regulations 1984 to cause her to be detained from the date of her release until the deportation order is made or an appeal against the decision under Part II of the Act is finally determined in her favour.”
9.	In the course of argument we canvassed with counsel a number of questions relating to the effect of the decision of the First-tier Tribunal on that authority for the detention of the appellant, which seemed to us to depend for its lawfulness on the existence of a valid notice of a decision to make a deportation order against her. We are particularly grateful to Leading Counsel for the Secretary of State, Mr. Robin Tam Q.C., for his assistance in relation to those questions and are satisfied, as he submitted, that in order to dispose of the appeal it is necessary for us to determine only two matters: (i) the true construction of the authority for detention and (ii) the effect of the Detention Review which took place on 25th January and 17th February 2011.
(i) The authority for detention
10.	There are two parts to the document authorising the appellant’s detention. The first contains a notice informing the appellant of the Secretary of State’s decision to make a deportation order against her; the second contains the authority for her detention, by which any constable may cause her to be detained “until the deportation order is made or an appeal against the decision under Part II of the Act is finally determined in her favour.” Mr. Tam accepted that the appellant’s appeal had been finally determined in her favour when the time for appealing against the decision of the First-tier Tribunal expired on 20th January 2011, but he submitted that the position changed on 7th February 2011 when her appeal once again became pending as a result of the grant of permission to appeal. At that point, he argued, the authority was revived, so that, if the appellant had by then been released (as she should have been), she could have been arrested and detained once more pursuant to it. 
11.	Mr. Husain Q.C. submitted that the document authorising the appellant’s detention should not be construed in that way. It was essential, he submitted, that when dealing with a matter as important as the liberty of the person the exercise of executive power be rigorously scrutinised and any warrant for detention expressed in clear terms. In particular, he submitted that the statutory provisions do not contemplate the existence of a warrant, the validity of which varies according to circumstances, including the fluctuating state of legal proceedings. He argued that the warrant ceased to have any effect when the time for appealing against the decision of the First-tier Tribunal expired and could not thereafter be revived. 
12.	I start from the proposition that any infringement of the right to personal liberty must be clearly justified, both in terms of the existence of the power to detain and in terms of its exercise. It follows that the language of any warrant authorising detention is to be construed in favour of liberty and any ambiguity resolved in favour of the person against whom it is directed. In this case the warrant was expressed to authorise the appellant’s detention only until an appeal had been finally determined in her favour. That condition was satisfied when the time for lodging a notice of appeal to the Upper Tribunal expired. At that point the warrant lapsed and could not justify her continued detention. The question then is whether it purported to authorise a subsequent period of detention. 
13.	I have a good deal of sympathy with Mr. Husain’s submission that the statute does not permit an ambulatory warrant of the kind for which Mr. Tam contended, but I do not think it necessary to determine that question in the present case. Mr. Tam drew our attention to the case of R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, [2004] INLR 503, in which this court considered for the purposes of qualification for asylum support the distinction to be found in section 104 of the Nationality, Immigration and Asylum Act 2002 between an appeal under section 82(1) of that Act which is “pending” and one that has been “finally determined”. The court held that an appeal was no longer “pending” (and so had been “finally determined”) when the time for lodging a notice of appeal had expired, but it accepted that, if permission to appeal out of time were granted, the appeal would once again become pending.
14.	The expression “until . . . an appeal . . . is finally determined in her favour” is capable of being construed as extending to a time after the Secretary of State had obtained permission to appeal, but that would be to render the effect of the warrant uncertain. It does not expressly purport to authorise a subsequent period of detention or detention from time to time and I do not think it should be construed in that way. For reasons I have already given, I think it should be construed restrictively in favour of the appellant. Moreover, although in this case the delay in seeking permission to appeal was relatively short, there is no limit beyond which it can be said with confidence that the Upper Tribunal would decline to exercise its discretion to extend time in favour of the Secretary of State. Moreover, it is possible that the appellant might have succeeded before the Upper Tribunal, but failed on an appeal by the Secretary of State to this court. Since, as is common ground, the appellant was entitled to be released on 20th January 2011, it would be very unsatisfactory to construe the original warrant as authorising her arrest and detention many weeks, if not months, later. In my view, therefore, this warrant should be construed as authorising only one continuous period of detention, which in this case expired on 20th January 2011.
(ii) The Detention Review
15.	The second question is whether the Detention Reviews which took place on 20th January and 17th February 2011 constituted authority for the appellant’s detention thereafter. Mr. Tam was at pains to emphasise that the statutory power to detain continued to exist and that the Secretary of State could exercise it again once she had obtained permission to appeal. That may be so, but the question is whether she did in fact do so. Mr. Tam submitted that she did, because, following a consideration of the circumstances surrounding the appellant’s case, the Secretary of State took an informed decision to authorise her continued detention. Mr. Husain submitted, on the other hand, that there is an important distinction between a formal warrant authorising a person’s detention and a decision to continue detention following a Detention Review, the sole purpose of which is to consider whether the existing position should be maintained. He submitted that in this context great importance is to be attached to compliance with the proper formalities. In the absence of a second warrant for the appellant’s detention signed by or on behalf of the Secretary of State, there was no exercise of the power available to her under the Act and so no lawful detention. 
16.	Regular reviews in accordance with the Secretary of State’s published policy are a procedural obligation essential to ensure the lawfulness of continued detention: see R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 W.L.R. 1299. They are necessary because they are the means of ensuring that the power of executive detention is not used in an arbitrary fashion, but the policy is not the source of the Secretary of State’s authority to detain; that lies in the statute. In paragraphs 50 and 51 of his judgment in Kambadzi Lord Hope drew a distinction between the initial decision to detain, which will be lawful if made under the authority of the Secretary of State pending the making of a deportation order, and the decision to continue that detention following a review. Baroness Hale in paragraphs 69-72 emphasised that the requirement to conduct regular reviews is procedural in nature. Similarly, in paragraphs 83-84 Lord Kerr drew a distinction between an initial valid exercise of the power of detention and periodic reviews of its continued justification. All this tends to support the conclusion that, although regular reviews are essential to the lawfulness of continued detention, they cannot constitute a valid exercise of the statutory power. 
17.	Mr. Tam submitted that to hold that the decision to continue to detain the appellant following the Detention Reviews on 25th January and 17th February 2011  respectively did not constitute authority for her detention would be to allow form to triumph over substance. I do not agree. Although, in general, substance is to be preferred to form, there are circumstances in which it is necessary to observe the correct form because only by doing so will the substantive requirements be satisfied. This is one of them. A Detention Review is an internal procedure conducted by the Home Office on behalf of the Secretary of State. A report of its outcome is given to the detainee, but not, apparently to anyone else. As far as the governor of the detention facility is concerned, authority for the detention of the person concerned is derived from the initial authorisation. In the present case once the original authorisation had lapsed, the governor of HMP Bronzefield, where the appellant was detained, was holding no valid authority for her continued detention.
18.	For these reasons I am satisfied that there was no lawful authority for the appellant’s detention after 20th January 2011 and that the appeal should therefore be allowed and the cross-appeal dismissed.
Lord Justice McFarlane :
19.	I agree.
Lord Justice Briggs :
20.	I also agree.