BA (Claimants and Respondents in the appeal) BB and Others The Secretary of State for the Home Department (Defendant and Appellant in the appeal) Bail for Immigration Detainees (Intervener)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division,Lady Justice Black,Lord Justice Davis |
| Judgment Date | 11 July 2012 |
| Neutral Citation | [2012] EWCA Civ 944 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/1887 |
| Date | 11 July 2012 |
[2012] EWCA Civ 944
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HH Judge Anthony Thornton QC
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
Lady Justice Black
and
Lord Justice Davis
Case No: A2/2011/1887
Mr James Eadie QC and Mr Robert Kellar (instructed by Treasury Solicitors) for the Appellant
Mr Hugh Southey QC (instructed by Deighton Pierce Glynn Solicitors) for the Respondent
Ms Helen Mountfield QC and Mr Tom Hickman (instructed by Allen & Overy LLP) for Bail for Immigration Detainees, as Intervener
Hearing date: 13 March 2012
The issue in this case is whether, if a person, who is in detention pending removal, raises a claim in the Administrative Court challenging the removal directions and claiming that the detention is unlawful and is refused permission, that person can begin an action afresh in the County Court or the Queen's Bench Division for damages for the unlawful detention.
The facts
(a) The claim for asylum and its determination
On 24 October 2006, the first three respondents in this court, BA, the mother, and her then two children, BB and BC, aged four and 23 months respectively, all citizens of the Cameroon, entered the UK unlawfully. They were arrested shortly afterwards on 31 October 2006. BA then claimed asylum for herself and her two children. She alleged she had been persecuted for political reasons in the Cameroon and she risked further similar persecution if she returned. She alleged that her persecution involved being subjected to inhuman and degrading treatment and being raped by agents of the state. She claimed it would be impossible for her to relocate safely within Cameroon if she were returned. The Secretary of State, the appellant in this court, refused her asylum claim on 6 December 2006. She appealed to the Asylum and Immigration Tribunal. After protracted proceedings, her appeal was dismissed on 27 November 2007. Permission to appeal to this court was refused on 16 January 2008.
(b) The issuance of removal directions
On 29 January 2008 the Secretary of State issued removal directions for BA, BB and BC. Those directions were withdrawn for various reasons. The Secretary of State then discovered that BA was in the late stages of pregnancy. It was decided there would be no removal until the child was born. BD, her third child (and the fourth respondent to the appeal), was born on 27 March 2008.
The Secretary of State issued further removal directions on 22 May 2008 and directions in connection with that removal for the detention of the family. The directions were served. BA and her children were taken into custody on 27 May 2008. They were held in Yarl's Wood Immigration Detention Centre until 22 July 2008.
(c) The first judicial review proceedings
On 30 May 2008 BA alone applied through Fadiga & Co, solicitors, for permission to bring judicial review proceedings to challenge the Secretary of State's decision to remove her. The evidence of Mr Zubeidi of Fadiga & Co was that he had been instructed in late May 2008 solely on her behalf and not on behalf of the children. A fresh asylum claim was lodged on 3 June 2008. The asylum claim was refused by the Secretary of State. The removal directions were affirmed. On 13 June 2008 the Secretary of State served an acknowledgement of service to the judicial review claim. On 18 June 2008 Cranston J considered the application for permission and refused it.
(d) Representations made by BA's solicitors to the Secretary of State after 18 June 2008
After the decision by Cranston J, Fadiga & Co made further submissions claiming that none of the family was fit to travel. They relied on BA's HIV status and lack of arrangements for her treatment to be continued in the Cameroon; they also relied on the fact that BB and BC were still in the process of being screened for HIV and submitted that that process ought to be completed prior to removal. It was also submitted that BD was too ill to travel and that her anti-malarial treatment and other immunisations had not been completed. The submissions were rejected by the Secretary of State on 3 July 2008.
On 4 July 2008 the Secretary of State issued a new set of removal directions for removal on 21 July 2008. Her solicitors wrote on 11 July 2008 with further submissions and asked that the submissions be treated as a fresh claim.
On 11 July 2008 Dr Nick Lessof, a consultant paediatrician at Homerton University Hospital in London, wrote a letter on NHS notepaper to an official in the Secretary of State's Department. This is an important letter as it was the foundation for the Secretary of State's claim that the next set of judicial review proceedings issued by BA on 18 July 2008 (as I set out at paragraph 9 below) was a claim where the lawfulness of the detention was challenged. The letter was headed 'Detention Centre Rule 35'. It purported to answer points made on behalf of the Secretary of State in earlier correspondence. The first part of the letter dealt with medical issues. The letter then continued:
"There are a number of points I should like to make.
…
2. Detention of a baby at age 2 months when essential immunisations are already planned at age 2, 3 and 4 months is indefensible.
3. You have made no attempt to consider [BD]'s health needs prior to detention.
…
10. Your policy is that families will only be detained "when absolutely necessary and for the shortest possible time".
11. There is no necessity to detain this family who will not abscond given their dependence on health services.
12. You are unable to remove this family within the next two months due to legitimate health need.
13. You therefore need to release the family.
14. This situation was entirely predictable prior to detention and as such the detention is an abuse of the family and a waste of public money."
(d) The second judicial review proceedings
On 18 July 2008 a second application for permission to bring judicial review proceedings was made. The claim form described the claimants as "[BA] plus three". It is not clear how these came to be added as the evidence of Mr Zubeidi was that he had never been instructed on behalf of the children.
The claim form identified the decision which was to be judicially reviewed as the removal directions dated 4 July 2008 to which I have referred at paragraph 7. The relief sought was the stay of removal pending consideration of health concerns. The statement of facts relied on was in the following terms:
"The contents of the immigration factual summary are accepted. The claimant has secured medical opinion requesting a stay of removal. Following the defendant's refusal a further letter was served relating to the refusal to stay removal. D has failed to respond to date."
That was a reference to the letter sent by Dr Lessof dated 11 July 2008. The statement of grounds described the claimant in the same terms as the claim form. Ground 1 related entirely to the claim for judicial review of the decision of 4 July 2008. Ground 2 was in the following terms:
"It is submitted that the defendant has acted against its own policy by failing to release the claimants from detention by letter dated 3 July 2008, which is contrary to the medical opinion served."
There was a third ground claiming that the Secretary of State had acted unlawfully by failing to provide a decision on the human rights claim. The grounds contained a caveat which stated they had been settled on an emergency basis and in great haste. Permission was sought to correct any errors within seven days or to amend the grounds following the Secretary of State's summary grounds of defence. The relief claimed was a quashing order of the decision to set removal directions and a declaration that to proceed with removal was unlawful. It also contained a claim for, "such further or other relief as the court finds fit".
On 19 July 2008 the Secretary of State disputed the claim on a basis relating to the medical evidence. However the further set of removal directions was set aside by the Secretary of State on 21 July 2008. BA and her children were released on 22 July 2008.
(e) The proceedings after the withdrawal of the removal directions
On 1 October 2008 Fadiga & Co and the Treasury Solicitor signed a consent order in the following terms:
"The present application for judicial review be stayed for 28 days from the date of this Order for the Defendant to respond to the Claimant's submissions dated 11 July 2008."
There were further directions in relation to the response. The reference to the document dated 11 July 2008 was a reference to Dr Lessof's letter.
On 24 October 2008 the Secretary of State wrote a response to Dr Lessof's letter of 11 July 2008, though this was addressed to the solicitors. The letter dealt with the medical grounds set out in that letter.
On 12 January 2009, Fadiga & Co wrote to the Treasury Solicitor (acting on behalf of the Secretary of State) making clear that they confirmed reliance on the original set of grounds. The letter essentially dealt with the medical conditions of BA and her children.
On 13 February 2009, in accordance with the terms of the consent order, the Secretary of State responded to the grounds in summary grounds of defence. The greater part of the document dealt with the removal directions but at paragraphs 15 and 16 addressed an issue under the heading, "Failure to adhere to detention policy":
"15. The Defendant submits that detention of the Claimant and her family was at all times in accordance with the relevant policies and...
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