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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gaviria -Manrique v The Secretary of State for the Home Department [2014] EWHC 33 (Admin) (16 January 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/33.html Cite as: [2014] EWHC 33 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 January 2014

His Honour Judge Sycamore :

1. This is a claim for judicial review by Isaias Gaviria-Manrique, a national of Columbia, by which he seeks declarations that his detention by the defendant for two separate periods during 2008 was unlawful and claims an entitlement to damages for more than a nominal sum. The periods were pleaded as:

i) 21 January 2008 to 2 April 2008

ii) 27 August 2008 to 17 September 2008

2. It was accepted on behalf of the claimant at the hearing before me that in respect of the first period the dates of detention were in fact from 21 January 2008 to 18 March 2008, the date on which the claimant was actually released.
3. The history of the matter is as follows. The claimant was born in Columbia on 10 October 1978. He arrived in the United Kingdom unlawfully on 1 May 1999 and claimed asylum. His application was refused and his appeal against that decision was refused by the Tribunal. On 2 April 2003 at the Central Criminal Court the claimant was convicted of kidnapping and blackmail and was sentenced to a total of 5 years imprisonment with a recommendation for deportation. A deportation order was signed in July 2005. In September 2005 the claimant made a fresh Human Rights and asylum claim and lodged proceedings for judicial review challenging the removal directions set for 3 October 2005. The application was withdrawn as the defendant accepted that the claimant had made a valid fresh asylum claim. The claimant was then detained in November 2005 and in September 2006 was granted bail, with a reporting condition, by an Immigration Judge.
4. In February 2007 the claimant attended a substantive asylum interview. On 24 August 2007 the defendant wrote to the claimant indicating that a certification under section 72 of the Nationality Immigration and Asylum Act 2012 was being proposed on the basis that the claimant was considered to constitute a danger to the UK community. A child was born to the claimant's then partner on 20 September 2007. By letter of 24 September 2007 the claimant made representations to the defendant to which the defendant responded by letter of 25 November 2007 by which he dismissed the claimant's representations against certification. That letter was served on the claimant on the 4 December 2007 with another document ASL1069 "Notice of Determination of Asylum Claim" but the document AIT1 "Notice of Decision" was not served, although it is clear that the defendant had intended that it should be served. On 10 January 2008 the defendant made a detention order to physically detain the claimant and arranged removal for 25 January 2008. The claimant was detained by the defendant pursuant to this order on 21 January 2008 when he reported as required by his conditions of bail. The removal directions were served at the same time.
5. On 25 January 2008 the claimant's new solicitors applied unsuccessfully to the Asylum and Immigration Tribunal for an extension of time to lodge an appeal against what was then thought to be the decision served on 4 December 2012. The claimant maintained that he had passed the papers to a translator to submit an appeal on his behalf but no appeal had in fact been lodged. Gloster J ordered a stay of removal on same day, and in accordance with her order these proceedings were lodged, by which the claimant challenged,

i) the defendant's decision to maintain the removal and

ii) the AIT's dismissal of the out of time application.

6. By letter of 6 March 2008 the defendant wrote to the claimant's solicitors in these terms:

"It has come to my attention that there was an error in the paperwork sent to your client. Accordingly the decision is to be re-issued. In those circumstances, the application for judicial review is redundant and should be withdrawn.

I enclose a form of consent which is self explanatory, for your endorsement".

This was clarified in a further letter from the defendant to the claimant's solicitors of 12 March 2008 in these terms:

"I acknowledge receipt of your fax of earlier today.

On 6 March 2008, it became apparent that a Notice of Decision had not been served on your client. Accordingly, my client instructed me to write to you informing you that there had been an error in the paperwork sent to your client and advising you that the decision would be re-issued.

I trust that clarifies the position".

On 14 March 2008 the immigration decision was served on the claimant and the claimant's solicitors filed an appeal to the AIT, seeking temporary admission. The defendant was released from detention on 18 March 2008.

7. On 2 May 2008 the claimant was detained by the Police in connection with an assault on his former partner. He was charged with an offence of assault occasioning actual bodily harm to which he pleaded guilty at Blackfriars Crown Court on 27 August 2008 and was sentenced to 6 months imprisonment. Due to the time already served on remand the claimant was immediately released from criminal custody but was detained by the defendant and transferred to Wandsworth Prison and then to an immigration centre. It seems clear that the defendant's letter of 27 August 2008 confirming that the claimant was to be detained and giving reasons was served on the claimant on 28 August 2008 at Wandsworth Prison. The claimant was released on bail by the AIT on 17 September 2008.
8. The claimant's appeal to the AIT was due to be heard in October 2008 but in fact did not take place until January 2009. The appeal was successful on Article 8 grounds and reconsideration of the asylum claim was required. Subsequently the claimant was convicted of an offence of burglary. A further decision to deport was taken against which the claimant appealed unsuccessfully. The claimant was removed from the United Kingdom on 19 February 2013.
9. Permission was granted on 10 May 2013 by Stuart J limited to the two grounds already referred to. The defendant had previously conceded that the claimant had been unlawfully detained by the operation of her unlawful and unpublished detention policy as considered by the Supreme Court Lumba [2011] UK SC12 and accepted that the claimant is entitled to nominal damages, on the basis that he would have been detained lawfully in any event.
10. The two challenges with which this application is concerned arise from the claimant's assertion that the defendant had failed to comply with his published detention policy and that the two periods of detention were thus unlawful.
11. It was made clear on behalf of the claimant that in respect of both periods of detention it was accepted that the defendant had a lawful power to detain derived from schedule 3 to the Immigration Act 1971. It was also accepted that during the period the claimant had been on bail, prior to his detention, 1 September 2006 to 21 January 2008, he had complied with the reporting conditions of his bail, which had been set at twice weekly. It was also agreed that prior to his arrest on 2 May 2008 he had been in breach of the curfew requirements of his bail on two occasions.
12. The defendant accepted that the "Notice of Decision" had not been served but it was submitted on her behalf that the she believed that she had given relevant notice and that the claimant believed that he had received sufficient notice, evidenced according to the defendant by the claimant's actions in passing the papers to a translator with a view to an appeal being submitted.
13. The defendant's primary position was that a regulation compliant decision was served on 4 December 2007. Her fall back position was that in any event the subsequent activity by the claimant demonstrated a lack of materiality in respect of any material flaws. I was reminded by Counsel for the defendant of what was said by Lord Dyson in Lumba on the issue of materiality at paragraph 68:

"…. As regards Mr Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment".

14. The defendant maintains that the relevant Regulations, the Immigration (Notices) Regulations 2003/658 ("The Regulations") do not require a "Notice of Decision" and that taken together the written information provided to the claimant complied with Regulations 4(1) and 5(1) (3) and (4) which provide as follows:

"4) Notice of decisions

(1) Subject to Regulation 6, the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable.

5) Contents of notice

(1) A notice given under Regulation 4 (1) –

(a) is to include or be accompanied by a statement of the reasons for the decision to which it relates; and

(b) if it relates to an immigration decision specified in [section 82(2)(a), (g), (h), (ha), (i), (ia)] [(j) or (3A)] of the 2002 Act –

(i) shall state the country or territory to which it is proposed to remove the person;

or

(ii) may, if it appears to the decision-maker that the person to whom the notice is to be given may be removable to more than one country or territory, state any such countries or territories.

….

(3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of -

(a) his right of appeal and the statutory provision on which his right of appeal is based;

(b) whether or not such an appeal may be brought while in the United Kingdom;

(c) the grounds on which such an appeal may be brought; and

(d) the facilities available for advice and assistance in connection with such an appeal.

(4) Subject to paragraph (6), the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax".

The defendant also relies on the fact that the AIT did not decline jurisdiction on the basis of an absent "Notice of Decision" when refusing to extend time for appeal on 25 January 2008. As to the defendant's subsequent decision to "re-issue" the Notice of Decision in March 2008 it was submitted that that has to be seen in the context of pragmatism and then extant judicial review claim.

15. It is the case that the absence of the immigration decision was not noticed by the claimant, his legal advisers nor the Immigration Judge. Counsel for the claimant referred me to a decision of the Upper Tribunal (Immigration and Asylum Chamber Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC) the head note to which states:

"(i) An appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 requires there to be an immigration decision, as there defined. Where no immigration decision has been made, the First-tier Tribunal has no jurisdiction to hear the appeal.

(ii) Judges considering an appeal (or applications for permission to appeal) should ensure that a copy of the notice of the immigration decision under appeal exists and is produced".

The Upper Tribunal Immigration Judge in that decision said at paragraph 9:

"…. Likewise here, the rejection of the application for further leave to remain in the refusal letter is not an immigration decision".

And at paragraph 11:

"…. The reasons for refusal letter is not the (notice of) immigration decision and does not generate the right of appeal. A notice of immigration decision must comply with the provisions of The Immigration (Notices) Regulations 2003. Under section 82(1) of the 2002 Act it is the immigration decision (contained within the notice of decision) that generates the right of appeal to the Tribunal".

16. Although Counsel for the defendant took me through a detailed analysis of the content of the documents which were served on the claimant on 4 December 2007 in his endeavour to persuade me that the communication was regulation compliant it was accepted that the letter did not expressly say that the defendant had decided not to revoke the Deportation Order. That was the decision which invoked the in country right of appeal provided for at section 82(2) of the Nationality, Immigration and Asylum Act 2002:

"82 Right of appeal: general

(1) Where an immigration decision is made in respect of a person he may appeal [to the Tribunal].

(2) In this Part "immigration decision" means – ….

(j) a decision to make a deportation order under section 5(1) of that Act, and

(k) refusal to revoke a deportation order under section 5(2) of that Act".

There could not be a decision under 82(2)(j) as that decision had already been made and adjudicated upon. The defendant agreed that the only reference in the letter of the 27 November 2007 served on the complainant on 4 December 2007 to section 82 appeared at paragraph 22 and 23 as follows:

"22. In accordance with section 72(9) (b) of the Nationality, Immigration and Asylum Act 2002 (as amended), the Secretary of State hereby certifies that the presumption under subsection (2) applies to you.

23. The effect of this certificate is that at any appeal brought under section 82(1) against the decision to deport you the presiding Judge must consider the certificate first. If the presiding Judge upholds the certificate then the appeal will be dismissed without any consideration of the asylum claim".

It does not address the question of refusal to revoke the deportation order.

17. A careful examination of the "Notice of Decision" which was served in March 2008 reveals that it is a two page document which on its face in two sections indicated that it is given in compliance with the 2003 Regulations. In the heading the following words appear:

"In compliance with the Immigration (Notices) Regulations 2003 made under section 105 of the Nationality, Immigration and Asylum Act 2002".

And the end of the document:

"This notice is given, in compliance with the Immigration (Notices) Regulations 2003 (made under section 105 of the Nationality, Immigration and Asylum Act 2002), on behalf of the Secretary of State, Home Office".

The document sets out clearly that it is a decision not to revoke a Deportation Order and goes on to explain the right of appeal, the time limits (10 working days) and that the appeal is in country. In my judgment the Regulations envisage that a lay individual is entitled to expect such a single document setting everything out in clear terms and in those circumstances and in the light of what was said in Singh I am satisfied that the defendant failed to serve an appealable immigration decision.

18. I now consider the second limb of the defendant's argument in relation to materiality. Put simply the claimant maintains that absent an immigration decision there was never any prospect of "imminent removal" as suggested by the defendant. The need for an immigration decision arose from the defendant's concession in February 2006 that the claimant had made a valid fresh claim under paragraph 353 of the Immigration Rules and as such was entitled to an in country right of appeal. The thrust of the claimant's submission is that when detaining the claimant in January 2008 the defendant failed to pay heed to her own policy of presumption of temporary release. The defendant's justification for detaining the claimant on 21 January 2008 can be found in her letter of 10 January 2008 which was served on the claimant on 21 January 2008.

"As you are aware, on 26 July 2005 you were made the subject of a deportation order. As the subject of deportation action you are liable to detention under schedule 3 of the Immigration Act 1971 (as amended).

However, detention is only used where there is no reasonable alternative available and there is reason to believe that you would not comply with any restrictions attached to your release.

The Secretary of State, having carefully considered the particulars of your case, is satisfied that your detention is justified under the powers contained in schedule 3 of the Immigration Act 1971.

It has been decided that you should be detained because:

You are likely to abscond if given temporary admission or release.

Your removal from the United Kingdom is imminent.

The decision to detain you has been reached on the basis of the following factors:

You do not have enough close ties (eg family or friends) to make it likely that you will stay in one place.

You have previously failed or have refused to leave the United Kingdom when required to do so.

……. She also considers when taking account into account all the known facts of your case that detention is proportionate to a social need being fulfilled and that it is necessary for the prevention of disorder and crime and is in the wider interest of the maintenance of an effective immigration policy.

The Secretary of State has also considered whether your right to respect for private and family life will be breached if you remain in detention.

The Secretary of State is not satisfied that your relationships in the United Kingdom are of sufficient proximity to give rise to family life for the purposes of Article 8 ….".

19. It was agreed that the "Hardial Singh" criteria applied as did the defendant's own detention policy which can be found in chapter 38 of the Operations Enforcement Manual. This was considered by the Court of Appeal in Nadarajah & Amirthanathan [2003] EWCA Civ 1768. The Master of the Rolls stated the following, at paragraphs 26 and 28 of that judgment:

"26. The Secretary of State publishes, and from time to time revises, in Chapter 38 of the Operations Enforcement Manual ('Chapter 38'), a policy in relation to detention of immigrants. During the period in which N and A were detained, its material provisions included the following:

'Chapter 38 – Detention/Temporary Release

38.1 Policy

General

In the White Paper "Fairer, Faster and Firmer – A modern Approach to Immigration and Asylum" published in July 1998 the Government made it clear the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention (see 38.19 and chapter 39). The White Paper went on to say that detention would most usually be appropriate:

to effect removal

initially to establish a person's identify or basis of claim; or

where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release ….'

28. Where proceedings have been initiated which challenge the right to remove an immigrant, it is not the policy of the Secretary of State to detain an immigrant on the ground that his removal is imminent. Normally, in such circumstances he will be granted temporary admission pending the result of those proceedings".

Chapter 38 also stated:

"1. There is a presumption in favour of temporary admission or temporary release.

2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.

3. All reasonable alternatives to detention must be considered before detention is authorised.

4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.

5. Each case must be considered on its individual merits".

20. As can be seen the justification for detention was a combination of likelihood to abscond and imminent removal. Given my findings in respect of the significance of the absence of a formal Notice of Decision at the time the defendant made her decision to detain removal could not be effected and as such could not be said to be imminent. The defendant sought to argue that she was entitled to make that decision because both she and the claimant believed that he had been correctly informed in a manner which was regulation compliant. For the reasons which I have already given I disagree. The only possible legitimate justification for detention would have been as to the suggested risk of absconding. In any event I observe that by 21 February 2008, when the defendant prepared a monthly progress report in relation to the claimant, the reasons given for continuing detention no longer referred to imminent removal. By this time judicial review proceedings had been commenced but the defendant had not discovered that she had failed to serve the Notice of Decision. In the monthly progress letter of 21 February 2008 the reasons for detention were given in the following terms:

"Your case has been reviewed. It has been decided that you will remain in detention because:

There is reason to believe that you will fail to comply with any conditions attached to the grant of temporary admission or release.

This decision has been reached on the basis of the following factors:

You have previously failed or refused to leave the UK when required to do so.

You do not have enough close ties to make it likely that you will stay in one place".

21. As I have already observed it was accepted that the claimant had always complied with his conditions of bail, significantly the twice weekly reporting. At that time the claimant was still in the relationship with his then partner and their son and the proposed bail address was one to enable him to live with her and his son. It was the case that there was one occasion on 4 September 2005 when the claimant had refused to travel by way of an escorted removal direction. This was shortly followed by his lodging judicial review proceedings which, as I have previously observed, were withdrawn when the defendant accepted that the claimant had made a fresh asylum claim. Subsequently events developed in this way. The defendant made her decision to "re-issue" the Notice of Decision which was in fact served on 14 March 2008 and as a consequence the claimant's solicitors filed an appeal with the AIT. The claimant was released on 18 March 2008.
22. In my judgment, against the background of the claimant's bail record, the availability of an address and the fact that he was subsequently bailed by the defendant it cannot be said, as the defendant sought to argue, that any lack of materiality in respect of the procedural flaw is demonstrated. Had the Notice of Decision been correctly served at the appropriate time and had the claimant exercised his right of appeal then, absent the prospect of imminent removal, it cannot be said that the Secretary of State would have detained the claimant in those circumstances. I agree with the submission made on behalf of the claimant that the failures on behalf of others, including the claimant, to notice the absence of the Notice of Decision may go to the question of quantum of damages but have no bearing on the assessment as to whether the claimant's detention was unlawful as a consequence.
23. Finally, in the context of the first period of detention I deal with the period between 6 March 2008, when the defendant became aware of the error, and 18 March 2008 when the claimant was in fact released. The defendant maintained that she was entitled to a reasonable period in which to take the necessary administrative steps to effect the claimant's physical release and sought to rely on R (Muqtaar) v SSHD [2012] EWCA Civ 1270 and what was said by Elias LJ at paragraph 80.

" ….The judgment was handed down on 28 June 2011 and yet bail was not granted until 13 July, over two weeks later …. I accept that some time was therefore necessary for the Secretary of State to assimilate the decision and to decide whether, depending on their particular circumstances, the appellant and others similarly detained pending a return to Somalia could be sent back to that country compatibly with their human rights ….".

I observe that those comments were made in the context of a very different set of circumstances in which the Secretary of State had to consider the impact of a judgment from the European Court of Human Rights which potentially affected a number of individuals. This was not the position in the instant case. On any view the defendant was aware certainly by 6 March 2008 that the claimant would wish to pursue an in-country appeal right. The stated purpose in "re-issuing" the Notice of Decision was to generate that right of appeal.

24. An examination of the defendant's case record sheets discloses that there was a period of inactivity of approximately 8 days after 6 March 2008 until a detention review was carried out on 14 March 2008 when a decision was made to refer the detention review to a more senior officer for consideration. It was on 17 March 2008 that the decision was made to release the claimant on tagging. Although the defendant argued for a reasonable period in which to take necessary administrative steps to effect release, the reality is that there is no record of any such steps being taken between 6 and 14 March 2008.
25. In my judgment, for the reasons which I have given the detention of the claimant was unlawful for the whole of the period from 21 January 2008 to 18 March 2008.
26. I deal next with the second period of detention. By this time the relevant policy in force had changed and chapter 55 "Detention and Temporary Release" of the Defendant's Enforcement Instructions and Guidance provided guidance on detention in criminal case work directorate cases (CCD). That guidance makes it clear that a different policy applies to CCD cases than the general policy:

"(CCD) are subject to a different policy than the general policy set out above in 55.1.1. Due to the clear imperative to protect the public from harm and the particular risk of absconding in these cases the presumption in favour of temporary admission or temporary release does not apply where the deportation criteria are met.

The deportation criteria are:

…. A recommendation from the sentencing court.

CCD cases

Due to the clear imperative to protect the public from harm the presumption in favour of temporary admission or temporary release does not apply in cases where the deportation criteria are met. In CCD cases concerning foreign national prisoners, because of the higher likelihood of risk of absconding and harm to the public on release, there is a presumption in favour of detention as long there is still a realistic prospect of removal within a reasonable timescale ….

Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject's criminality …. Where the offence which has triggered deportation is included in the list at 55.3.2.1 the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. The factors in favour of release involving these serious offences must be particularly compelling. In practice release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences".

It was accepted that all of the claimant's offences, blackmail, kidnapping and assault occasioning actual bodily harm, were included in the list of crimes for which release from immigration detention at the end of a custodial sentence would not be appropriate.

27. The thrust of the claimant's complaint is that although he was detained on 27 August 2008 he was not served with the defendant's letter of that date setting out the defendant's decision to detain and reasons for detention until a later time. As I have observed earlier it seems clear that at the very latest the claimant received the letter when he was at Wandsworth Prison the following day, 28 August 2008.
28. A careful analysis of the defendant's case record sheets leading up to the decision and the letter of 27 August 2008 demonstrates that the defendant had proper regard for the provisions of chapter 25 and other relevant information, including a summary of the circumstances of the offence of assault on his former partner. The defendant reached a conclusion, taking a careful view of the risk of absconding, and lawfully detained the claimant against a background in which there was a prospect of removal within a reasonable period. At that time the claimant's appeal to the AIT was due to be heard in October 2008. In reaching her decision the defendant made it clear that detention was necessary for the prevention of disorder and crime which decision was informed by her knowledge of the circumstances of his offending and the views from social services that there was thought to be a high risk of repeat domestic violence on the part of the claimant.
29. As to the claimant's complaint that he did not receive the defendant's letter of 27 August 2008 on the same day the defendant submits that it must have been obvious to the claimant why he was being detained Counsel for the defendant referred me to Faulkner v SSHD [2005] EWHC 2567 (Admin) Bean J at paragraph 23:

"…. It is easy to conceive where a failure to give reasons for continued detention is immaterial. Suppose a case where an illegal entrant to the United Kingdom with no family or ties here is convicted of conspiracy to supply class A drugs, sentenced to 14 years imprisonment and recommended for deportation. Shortly before the end of the custodial period of his sentence, he is served with a deportation order against which he appeals. No court would contemplate the grant of bail in those circumstances and the reasons for detention are obvious. Here, by contrast, the claimant was sentenced to 30 months imprisonment, was not recommended for deportation, has a partner and child in the United Kingdom and, as we now know, although his application for bail was refused at the first time of asking on 10 May, it was granted on the second occasion on 21 June. It cannot in those circumstances be said that the failure to inform him in March of the reasons for his detention and the procedure for applying for bail was immaterial ….".

In this case, as was observed on behalf of the defendant, the claimant knew that he had been certified as a danger to the public, he had been recommended for deportation and had been convicted of assault occasioning actual bodily harm on his then partner, the mother of his child. I agree that by analogy with Faulkner the reasons for his detention would have been obvious to him. In any event he received a detailed letter from the defendant only a day later. There is no merit in this aspect of the claimant's challenge which I dismiss.

30. Given my findings in respect of the first period of detention it follows that the claimant is entitled to general damages for more than a nominal sum. I direct that the assessment of damages shall be remitted to a Master of the Queen's Bench Division, such remittal to be stayed for 3 months to enable the parties to try and reach a settlement and for the Claimant to find alternative representation, his present solicitors currently being suspended from carrying out publicly funded work. I will hear the parties on a separate occasion, if necessary, in relation to costs and any other consequential orders.