Case No: CO/10149/2012
Neutral Citation Number: [2014] EWHC 1030 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/04/2014

Before :

MR JUSTICE IRWIN
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Between :

	E	Claimant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant	

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Mr Hugh Southey QC and Mr Edward Grieves (instructed by Wilson Solicitors LLP) for the Claimant
Mr David Blundell (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 11 and 12 February 2014
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Judgment
Mr Justice Irwin : 
Factual Background
1.	The Claimant is a Chechen born on 17 April 1966.  He is therefore a national of Russia.  According to earlier findings of SIAC, summarised by the Court of Appeal in the judgment reported as R(E)(Russia) v Secretary of State for the Home Department [2012] EWCA Civ 357, [2012] 1 WLR 3198, the Claimant worked as an advisor to the President of Chechnya, Ramzan Kadyrov.  He –
“played a significant role in the assassination of [the Chechnyan exile called] Israilov in Austria on behalf of Kadyrov.”
2.	The security service assessment recited by the Court of Appeal was that Kadyrov had a blacklist of individuals, some of whom he wished to have assassinated, and that the exiled Prime Minister of Chechnya, Ahkmed Zakayev, a refugee living in the UK, was believed to be on the blacklist.  The security service assessed that Kadyrov was likely to seek to target Zakayev and that, if he did so in the UK, the Claimant would be likely to assist.  Therefore the assessment was that the Claimant posed a serious threat to Zakayev’s life.  
3.	On 30 July 2002, the Claimant was granted asylum and indefinite leave to remain [“ILR”] in the United Kingdom.  The Claimant’s wife and four children were granted ILR on 31 January 2003.  Two more children were born to the couple thereafter in the United Kingdom.  In April 2007, the Claimant, his wife and children all applied for naturalisation.  On 30 October 2009, the Claimant’s wife and four eldest children (but not the Claimant) were granted British citizenship.
4.	The Claimant had been issued with a ten year Refugee Convention travel document endorsed for all countries except Russia in February 2003.  He travelled extensively outside of the United Kingdom in 2008 and 2009.  
5.	On 11 May 2010 the Secretary of State directed that the Claimant should be excluded from the UK on the grounds that his presence was not conducive to the public good because of the threat he was assessed to present to national security.  On the same basis and at the same time, the Secretary of State decided that the Claimant was no longer to be recognised as a refugee and his ILR was cancelled.  These decisions were notified to the Claimant in writing on 28 May 2010.  A letter further informed him that he had an out-of-country right of appeal against the decision to cancel his ILR.  The letter of 28 May 2010 was served on 1 June 2010.  The Claimant appealed on 21 June.  
6.	On 25 March 2011, the Court of Appeal handed down judgment in R(MK)(Tunisia) v SSHD [2011] EWCA Civ 333, [2012] 1 WLR 700.  The decision was, in effect, that someone in the position of the Claimant had continuing leave pursuant to s.3(D) of the Immigration Act 1971 [“the 1971 Act”] throughout the limited time for appeal under s.82(1) of the Nationality, Immigration and Asylum Act 2002 [“the 2002 Act”].  Following this judgment, the Claimant commenced judicial review proceedings to challenge the decision to prevent him entering the UK.  On 31 March 2011, Mitting J granted permission but subsequently dismissed the judicial review claim.  On 20 April 2011, SIAC dismissed the Claimant’s appeal.  On 22 March 2012, the Claimant appealed successfully to the Court of Appeal against the decision of Mitting J in the judicial review claim:  see E1/OS(Russia) v SSHD [2012] EWCA Civ 357.
7.	On 29 February 2012, the Secretary of State issued a fresh notice cancelling the Claimant’s ILR.  The notice informed the Claimant that he was permitted to return to the UK but notified him that if he did return, he would be detained on arrival, pending any appeal.  He could alternatively have appealed out of country.  He returned to the UK on 7 March 2012 and was in fact detained on arrival.  On 13 March 2012 he appealed to SIAC.  A hearing in the appeal was listed to follow this matter in the Administrative Court.  In those proceedings, the Claimant is identified as “D2”.
8.	On 22 March 2012, the Claimant applied to SIAC for bail.  On 2 May 2012, Mitting J, as the Chairman of SIAC, wrote to the parties inviting them to consider whether bail could be granted to E on condition he departed from the UK until shortly before the appeal, 
“…without his appeal being treated as abandoned under s.104(4) of the Nationality, Immigration and Asylum Act 2002.  This may require an undertaking by the Secretary of State not to contend that his appeal is to be treated as abandoned or, possibly, to make a further immigration decision, attracting a right of appeal shortly before the date fixed for the hearing.”
9.	On 4 May 2012 the Claimant’s solicitors wrote to SIAC arguing that s.104(4) prevented the Claimant leaving the UK without his appeal being abandoned.
10.	The Treasury Solicitor replied on behalf of the Secretary of State on 8 May advising that –
“The Secretary of State is unable to provide an undertaking that if D2 departs the UK, whether or not in compliance with a bail condition, his appeal is not to be treated as abandoned under s.104(4) of the Nationality, Immigration and Asylum Act 2002.  The Secretary of State cannot go behind the clear purpose of primary legislation and the intention of Parliament or seek to disapply it. 
We would point out that the notification of the decision letter dated 29 February 2012 made clear that D2 had the option of remaining outside the UK and lodging an out-of-country appeal, but he chose to return to the UK and lodge an in-country appeal.  If D2 decided to leave the UK his appeal would be treated as abandoned under s.104(4) of the 2002 Act.”
11.	At that point, both the Secretary of State and the Claimant were asserting to SIAC that the course proposed by the Chairman of SIAC on 4 May 2012 was in breach of the legislation and thus unlawful.
12.	SIAC refused the Claimant bail on 8 May and then again on 17 July 2012.
13.	On 14 August 2012, the Claimant’s solicitors wrote to SIAC taking a different position.  They urged that he could leave the UK without abandoning his appeal.  On the following day, 15 August, the Treasury Solicitor wrote inter alia as follows:
“The Secretary of State is clearly of the view that SIAC has no power to make an order that D2’s appeal is not considered abandoned if he leaves the UK.  With respect, SIAC is a statutory creature and its powers do not extend to overriding clear primary legislation in these circumstances.
Section 104(4) [of the 2002 Act] requires that an appeal brought by a person while he is in the UK “shall” be treated as abandoned if the Appellant leaves the UK.  The provision does not afford discretion.  The appeal is only “treated” as abandoned because it does not involve the Appellant consciously abandoning it as under section 104(1)(b).
Moreover, the Appellant’s leave is currently only extended by virtue of section 3(D) of the 1971 Immigration Act.  Section 3(D)(3) also states that “a person’s leave as extended by virtue of this section shall lapse if he leaves the UK.”
Parliament has expressly permitted detention pending deportation and the Appellant has availed himself of a bail hearing in accordance with Article 5(4). 
The Appellant is free at any time to voluntarily depart the UK.  However, if he does so it is clear that his current appeal would be at an end.  That said, any subsequent application for leave to enter would, of course, be decided on its merits and any adverse decision may or may not be appealable in its own right.”
14.	On 13 September 2012, the Claimant requested a meeting with the Governor of HMP Long Lartin to discuss his wish to return to Chechnya.  On 17 September the prison notified the Secretary of State that the Claimant wished to return to Chechnya.  On 24 September, the present judicial review claim was issued.  On the following day, 25 September, the Claimant wrote in person to the Secretary of State stating that –
“Please note that I wish to voluntarily leave the UK and go to Kiev, Ukraine.  Please can you make arrangements for this as of immediate effect sending a UKBA representative to see me as soon as possible at HMP Long Lartin, if necessary.  I have already informed my solicitor….”
15.	On 28 September, two immigration officers visited the Claimant at Long Lartin in the company of a Russian interpreter.  
16.	The Immigration Officers interviewed the Claimant with pre-prepared questions.  Although he indicated he could fully understand English, all exchanges were translated into Russian as a precaution.  The relevant exchanges read as follows:
“1.  On 14 August you requested bail to return to Chechnya.  SIAC responded to that request in a letter dated 22 August explaining that SIAC cannot override the statutory presumptions that your appeal is to be treated as abandoned, or that your leave lapses, if you leave the UK.  
The Claimant responded “YES”.
2.  On 17 September HMPS faxed the home office stating that you wished to withdraw your appeal and return to Chechnya.  Is this correct?
The Claimant responded “YES”.
3.  Does it remain your intention to withdraw your appeal and return to Chechnya?
The Claimant responded “YES”.  “But can I return to Ukraine, I do not need a visa for Ukraine.  It is better for me.  I do not wish to be deported.  I do not wish to have a stamp in my passport”.
4.  Have you spoken to your solicitors about your intention since you mentioned it on 13 September?  
The Claimant responded “YES”.  “I spoke to my solicitor yesterday when they came here.  I have explained my intentions.  They want me to stay and wait for my outcome….”
5.  It also appears that your solicitors have launched a separate set of proceedings judicially reviewing our and SIAC’s approach to your case and demanding that you be granted bail now that your appeals survive any departure from the UK.  This is further reason for you to discuss the matter with your lawyers.
The Claimant responded “YES”.
6.  If you sign this letter you would be agreeing to withdraw your on-going appeals in any event.  Your JR would be academic and you would be agreeing that you wish to leave the UK without waiting for its outcome.  Should you withdraw your appeals you would no longer have the right to be in the UK, you would no longer have the right to challenge our cancellation of your leave and your removal, and we would begin the process of removing or deporting you from the UK… You would remain in detention pending your removal but we would attempt to remove you from the UK as quickly as possible.  WAIVER PRESENTED AND EXPLAINED.  Do you understand?
The Claimant responded “YES”.  “I need for it to be completed quickly.  If not then I will stay for my appeal.  I do not want to wait weeks and weeks and months.
7.  I cannot answer any specific questions now but if you have any questions I can refer these back to my office and can provide you with an answer in due course.  Do you have any questions?
The Claimant responded “YES”.  “I need you to tell me that you will book my flight as soon as you leave.  There are lots of flights every day from Heathrow.”  “You must ask if I can go to Ukraine first.  If not then I am happy to return to Russia.  But you must ask”….
My response:  “I cannot guarantee your flight.  The Home Office is legally obliged to give 72 hours notice once removal directions are set.  There is also a legal procedure the Home Office must follow before you are returned.  Although as you have explained you are voluntary (sic) departing, the Home Office still must follow set guidelines to ensure your return is lawful and legal.  Do you understand?”
The Claimant responded “YES, but send me back quickly.”
17.	At that point in the interview the Immigration Officer left to consult colleagues and returned, whereupon the following exchange took place:
“ “I have spoken to the Home Office regarding our questions.  The Home Office would return you back to you country of origin, in this case Russia.  Are there any compelling reasons why you cannot return there?”
The Claimant responded “NO”.
“Do you have citizenship in Ukraine?”
The Claimant responded “NO”
My response:  “are you content in returning to Russia?”
The Claimant responded “YES, but send me back quickly.”
18.	The context in which the Claimant expressed those views was, in my judgment, quite striking.  He had returned to the UK in the expectation that the Secretary of State intended to detain him, and he must at least have considered this was a likely outcome.  In doing so, he had foregone the opportunity to pursue an out-of-country appeal.  He had in fact been detained from his return on 7 March 2012.  He was aware that there were judicial review proceedings intended to challenge the legal position, as it was said to be, by the Secretary of State:  at the time of this conversation his lawyers had applied for urgent consideration of the case as his liberty was in question and on 25 September Bean J had abridged to 14 days the period for an Acknowledgement of Service.  The Claimant was aware, as he told the Immigration Officers, that his solicitors had advised him to stay and pursue his appeal.  The SIAC hearing date had been set for February 2013.
19.	The parties have agreed that evidence filed in the judicial review and filed in the proceedings before SIAC should be considered and received in each of those proceedings.  However, there is no witness statement from the Claimant, or indeed other evidence in the SIAC appeal or in the judicial review, giving the Claimant’s reasons for deciding to leave the country and abandon his appeal.  His reasons must therefore be inferred from the existing evidence. 
20.	In my judgment it is not the correct inference, as Mr Southey submits, that the Claimant decided to leave because he faced continued detention until the appeal hearing in February.  It seems to me that the natural inference from the evidence I have seen is that, for some pressing reason which remains unexplained, he suddenly became anxious to leave the UK and return to Chechnya, via the Ukraine or Russia, provided he could do so quickly.  He knew at the time this was going to mean the end of his appeal, unless the legal view taken by the SSHD (in the face of an invitation from the Chairman of SIAC to adopt a different course) were to be upset by the Courts, and unless he waited until the matter was so tested.  He knew that his own legal advisors had taken the same view of the law as the SSHD until August 2012.
21.	On 1 October 2012, the Claimant’s solicitors wrote stating that he wished to maintain his appeal, despite his proposed departure.  On 3 October directions were set for the Claimant’s removal to Moscow on 6 October.  On the same day SIAC sent an email, stating that the Commission would issue a notice treating the appeal as withdrawn at 2pm on 5 October 2012, unless restrained from doing so by the High Court.  By an email of 12.37pm on 5 October 2012, the Claimant’s solicitors indicated they would not be seeking an injunction to restrain his removal.  A letter was also sent to SIAC urging that the appeal had not been withdrawn:
“… the documents placed before SIAC by the Secretary of State do not constitute a valid withdrawal.  This is because [the Claimant] was not properly informed of his options in law... As such the advice he was given by the Immigration Officer when signing the notice [of waiver] was mistaken and incomplete.  As such, the Notice of Withdrawal does not comply with Article 5 ECHR.”
22.	On 5 October SIAC served an order under Rule 11A(3) of the SIAC rules confirming that the Claimant’s appeal had been withdrawn.  On 6 October 2012, the Claimant was removed from the UK.
23.	Permission to apply for judicial review was refused on the papers by Cox J on 15 October 2012.  On renewal before Phillips J on 16 October 2013 permission was granted on limited grounds, namely that –
“… there be no argument about the construction of Section 104 of the NIAA, the 2002 Act other than … based upon the Human Rights Act 1998.”
The Statutory Framework
24.	By Section 82(1) of the 2002 Act, an “immigration decision” carries a right of appeal, normally exercisable to the First-tier Tribunal (Immigration and Asylum Chamber).  By Section 82(2)(e) an “immigration decision” includes “variation of a person’s leave to enter or remain in the United Kingdom if, when the variation takes effect, the person has no leave to enter or remain”.
25.	By Section 92(1) a person may not appeal under Section 82(1) “while he is in the United Kingdom unless his appeal is of a kind to which this section applies”.  However, by Section 92(2) of the 2002 Act, Section 92 is applied to an appeal of a kind specified in Section 82(2)(e).  Hence the Claimant had a right of appeal which could have been exercised from abroad but could also have been exercised in-country “while he is in the United Kingdom”.
26.	The effect of Section 97 of the 2002 Act and Section 2 of the Special Immigration Appeals Commission Action 1997 [“the SIAC Act”] is that such an appeal as this may not be brought before the First-tier Tribunal but may be brought to SIAC.  The change of appellate jurisdiction does not alter the substantive immigration law applicable to the case.  
27.	By Section 78 of the 2002 Act, whilst a person’s appeal under Section 82(1) is “pending” he may not be removed from the United Kingdom or required to leave the United Kingdom.  The definition of the term “pending” is given in Section 104 of the 2002 Act:
“An appeal under Section 82(1) is pending during the period –
	(a)  beginning when it is instituted, and
	(b) ending when it is finally determined, withdrawn or 	abandoned.”
The prohibition on removal does not prevent the giving of removal directions or the taking of any other interim or preparatory action:  see Section 78(3).
28.	Section 78(4) of the 2002 Act provides:
“This Section applies only to an appeal brought while the Appellant is in the United Kingdom in accordance with Section 92.”
Hence, the prohibition on removal would not apply to someone who initiated an appeal whilst out of the country and subsequently travelled to the UK hoping to attend the appeal.  
29.	Section 104(4) of the 2002 Act reads as follows:
“(4)	An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant leaves the United Kingdom.”
30.	It follows that Section 104 of the 2002 Act distinguishes between an appeal which is withdrawn, an appeal which is abandoned and an appeal which is to be “treated as abandoned”.
31.	Rule 11(A) of the SIAC (Procedure) Rules 2003 provides that:
“(1) An Appellant may withdraw an appeal –
	(a) orally, at a hearing; or
	(b) at any time, by filing written notice with the 	Commission.
(2) An appeal shall be treated as withdrawn if the Secretary of State notifies the Commission that the decision to which the appeal relates has been withdrawn.
(3) If an appeal is withdrawn or treated as withdrawn, the Commission must serve on the parties and on any Special Advocate a notice that the appeal has been recorded as having been withdrawn.”
32.	Section 3(D) of the Immigration Act 1971 [“the 1971 Act”] deals with leave to remain during the currency of an appeal.  Section 3(D)(2) extends leave to remain in the United Kingdom, where the person would otherwise have no leave to enter or remain, during any period when:
“(b) an appeal… against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of [the 2002] Act).”
33.	Section 3(D)(3) of the 1971 Act provides that:
“A person's leave as extended by virtue of this section shall lapse if he leaves the United Kingdom.”
The “Domestic” Law
34.	The parties are agreed that so far as the “domestic” law is concerned the interpretation of Section 104(4) of the 2002 Act has been settled by the decision of the Court of Appeal in MM(Ghana) v SSHD [2012] EWCA Civ 827.  Mr Southey QC for the Claimant reserves the right hereafter to argue that MM(Ghana) was wrongly decided, but he accepts that the Administrative Court is bound by the decision.  It was this decision which led to the limited grant of permission by Phillips J in October 2013.  Accordingly, the focus of argument on behalf of the Claimant was based on the European Convention.  However, before I turn to those arguments, there are one or two conclusions of fact and law which need to be set out.
35.	As I pointed out, Section 104(4) distinguishes between an appeal which is withdrawn, abandoned or “treated as abandoned”.  Rule 11(A) of the SIAC Rules recites that an appellant may “withdraw” an appeal and provides for how an appeal may be “treated as withdrawn”.  The SIAC rules do not set out how an appeal may be “abandoned”.  Yet the two provisions must live together.  It is to be presumed that a positive withdrawal would normally be a conscious decision communicated by the party concerned.  A party might “abandon” an appeal consciously and by giving notice in those terms, or “treat it as abandoning” an appeal on one or other sensible ground.  Translating that language into the SIAC rules, a positive notice of withdrawal or a positive expression of abandonment could both naturally be taken as constituting withdrawal of an appeal under Rule 11(A).  Equally, an appeal which by operation of Section 104(4) falls to be “treated as abandoned” would naturally fall to be “treated as withdrawn” within Rules 11(A)(2) and/or (3) of the SIAC Rules.
36.	On the facts here, it is necessary to decide whether this case fell within the meaning of Section 104(4) at all.  As I have already indicated, I find that the Claimant’s overriding purpose was to travel back to Chechnya rapidly.  The question of his appeal seems to have been a secondary concern.  Nevertheless, some of the answers given to the Immigration Officers, and to this day unchallenged by the Claimant, are quite unequivocal.  He clearly indicated his understanding that SIAC could not override the statutory presumption that his appeal was to be abandoned:  see Answer 1.  He agreed that the facts of 17 September stated his indication was to “withdraw [his] appeal”:  see the second answer.  In his third answer he confirmed that it remained his intention to “withdraw [his] appeal”.  His fourth answer made it clear that his decision was taken in the light of contrary advice from his solicitors.  In full awareness of the judicial review proceedings, he confirmed in his sixth answer, and in signing the waiver, that he wished to withdraw his appeal.  In my view, it is quite clear that this was a choice made in full knowledge of the fact that an alternative argument could have been mounted to seek to preserve the appeal.  This was a positive withdrawal or a positive abandonment of the appeal.  The choice was to go quickly and thereby to abandon the opportunity to argue for a different interpretation of the law.
37.	For those reasons, I accept the submissions of the Secretary of State that the debate about the meaning of Section 104 of the 2002 Act is academic.  The grant of permission by Phillips J cannot preclude such an argument by the Defendant.
38.	The Secretary of State goes on to argue that it would be wrong for the Administrative Court to continue and hear an academic judicial review claim for the reasons set out in R v SSHD ex parte Salem [1999] 1 AC 450 per Lord Slynn at 457(a):
“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”
39.	As the Secretary of State also points out, that approach has been directly applied to judicial review by Silber J in R(Zoolife International Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin):  see paragraphs 32-37.  There are in my view no exceptional circumstances present in this case to justify hearing an academic claim.  Again, as the Secretary of State correctly points out, there is no large number of similar cases, either existing or to be anticipated.  The Claimant’s own submission is that the present claim turns very much on its own facts as the grounds recite in paragraph 4.5.3:
“… It should be remembered that the circumstances of the Claimant’s case are relatively unusual.  It will be rare that travel will be a realistic way of bringing detention to an end.”
40.	For those reasons alone, I would dismiss this claim.  
Observations in Respect of the Claimant’s Further Arguments
41.	Since all the arguments were in fact advanced, I will indicate very briefly my views in respect of the central points advanced by the Claimant bearing on the Human Rights Act HRA 1998.  Mr Southey relies on the decision of the Privy Counsel in Millar v Dickson [2002] 1 WLR 1615.  That case was concerned with the trial of criminal cases in Scotland by temporary sheriffs.  The Claimants in the case were criminal defendants who had, without their knowledge, had their criminal cases tried before temporary sheriffs and, when they subsequently challenged such proceedings as being incompatible with Article 6(1), were met by the argument before the High Court of Justiciary (“HCJ”) that they had tacitly waived their right to object to such a tribunal.  Mr Southey argued that, although the Millar case was concerned with Article 6, that approach had been applied to other convention rights (e.g. DH v Czech Republic, Application number 57325/00).  He also argued there is no case law suggesting that European Convention rights could be waived without the Millar standards being satisfied.
42.	The essential test for a valid waiver laid down in Millar is in the speech of Lord Bingham at paragraph 31:
“In most litigious situations the expression “waiver” is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise.  In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression”
43.	In my view this waiver, or withdrawal, of the appeal was indeed a “voluntary, informed and unequivocal election by the Claimant not to claim a right or raise an objection”.  It is not necessary for a valid waiver that legal advice which informs the decision must necessarily be correct.  That must particularly be so when lawyers are advising in favour of legal challenge and the litigant declines to follow the advice and abandons the legal challenge.  
44.	A further essential plank for Mr Southey’s claim is the submission he makes about the Claimant’s detention.  He firstly submits that it was the Claimant’s objective in leaving the United Kingdom and abandoning his appeal that he should thereby avoid continued detention.  I have already found against that as a matter of fact.  Mr Southey goes on to say that it was a breach of his Convention rights that he was, in practice, forced to remain in detention in order to sustain his appeal.  He relies upon the authority of the Strasbourg Court in Omar v France (2000) 29 EHRR 210.  In Omar the question at issue was the declaration by the French Court of Cassation that Omar’s appeal was inadmissible on the sole ground that he had not surrendered to custody pursuant to the judicial decision challenged in the appeal.  The sentences such appellants faced could not be challenged, as a matter of law, without a surrender to custody.  The Court found this was an unwarranted restriction on their right to a fair trial under Article 6.
45.	As Mr Blundell for the Respondent argued, in my judgment the Omar case is not a valid parallel on which the Claimant can rely, for a number of reasons.  The first reason is that Omar was a case concerning Article 6.  As the Claimant accepts, Article 6 does not apply to immigration proceedings:  see Maaouia v France (2003) 33 EHRR 1037, and RB(Algeria) v SSHD [2010] 2 AC 110.   Thus the obligations to be derived from Article 6 simply do not arise.
46.	Even if those obligations did arise and Omar applied here, there would still be no true parallel between Omar and this case.  Detention of the Claimant was not an inevitable and essential component of the exercise of the right of appeal.  He was detained because of his perceived risk to national security.  He had the right to apply for bail and did so on two occasions, albeit unsuccessfully.  This detention was not arguably arbitrary in the sense of Saadi v UK (2008) 47 EHHR 17.  There was a clear and proportionate connection between the grounds of detention relied on and the detention itself:  see James, Wells and Lee v United Kingdom Application nos 25119/09 and 57715/09.  The Claimant was never misled in order to facilitate detention, in the sense condemned in Conka v Belgium (2002) 34 EHHR 1298.  The Applicant could have exercised his rights of appeal from abroad, thereby avoiding any question of detention.  Although it is recognised that there is a definite benefit attached to the right to pursue an in-country appeal, it is legitimate to restrict appeal rights so that they are only exercisable out of country, provided such arrangements are not disproportionate.  In my view it cannot be held to be disproportionate or a breach of Article 6 that this Claimant was faced with the initial choice either to launch an appeal abroad, or to enter the United Kingdom and launch an in-country appeal, but with the risk that he might be detained by reason of his threat to national security.
47.	I would also find in favour of Mr Blundell’s argument that it is rational, fair and comprehensible for a State to maintain a connection between presence within its territory and the maintenance of an appeal against an immigration decision which, if the appeal is withdrawn or is unsuccessful, brings to an end the individual’s right to remain in the State.  This is the scheme of the legislation and there is in my view no valid argument to suggest that it is disproportionate or leads to the breach of any protected Convention rights.
48.	For all these reasons I would reject the Claimant’s arguments based on the European Convention.  Accordingly the claim for judicial review is dismissed.