R (Medical Justice) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 21 May 2010 |
| Neutral Citation | [2010] EWHC 1425 (Admin) |
| Docket Number | CO/4321/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 May 2010 |
[2010] EWHC 1425 (Admin)
Before: Mr Justice Cranston
CO/4321/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MS DINAH ROSE QC and MS CHARLOTTE KILROY (instructed by Public Law Project) appeared on behalf of the Claimant
MR JONATHAN SWIFT QC (instructed by Treasury Solicitors) appeared on behalf of the Defendant
MR JUSTICE CRANSTON:
Background
The applications before me arise out of a claim for judicial review in which the claimant challenges part of the Secretary of State's policy on the removal of persons from the United Kingdom. What is at issue in the claim is contained in Section 3 of the document entitled “Judicial Review and Injunctions”. That is part of the UK Border Agency's Enforcement Instructions. The policy in Section 3 is sometimes referred to as the policy of same day removals, although that is not technically correct, or as the exceptions policy. In this judgment, I shall refer to it as the Section 3 policy.
Section 2 of the document “Judicial Review and Injunctions” provides that, in general, 72 hours and at least two working days’ notice ought to be given when a person is to be removed from the United Kingdom, but Section 3 goes on to identify circumstances in which less than 72 hours may elapse before the notification of removal directions and removal itself. Section 3 refers to five specific categories: first, medically documented cases where removal directions will create a risk of suicide or self-harm, and that risk is medically documented; secondly children, where it is believed to be in the best interests of unaccompanied children because of the risk of absconding (although liaison ought to occur with children's services and the receiving country); thirdly, where it is in the best interests of another person, for example where there is a threat or credible risk that a parent will harm his or her child; fourthly, disruption, where giving advanced notice to an individual to be removed might lead to disruptive behaviour on his behalf; and fifthly where there is consent from the person to be removed.
Section 3 also contains a number of safeguards so that, for example, the UK Border Agency officials must let legal representatives know by fax as soon as the removee is told, and where possible bringing the matter to the attention of the legal representatives. Other safeguards include that, if asked, the officials must allow the individual to speak to their legal representatives, and where possible the official must schedule the removal for a working day during office hours.
The claimant's case is that the Section 3 policy is unlawful and that in no circumstances should the period between notification of removal directions and removal from the United Kingdom be less than 72 hours. Their claim was filed with the Administrative Court office on 6 April 2010. The claim was considered on the papers by His Honour Judge Thornton QC sitting as a Deputy High Court Judge. On 13 April 2010 he granted permission to apply for judicial review, albeit that he did not have an acknowledgement of service or summary grounds from the Secretary of State. He refused interim relief but he imposed a protective costs order, under which the claimant would be liable to a maximum appeal limit for costs in the sum of £5,000. That order was made again without the Secretary of State having the opportunity to make submissions on the application. The Deputy Judge expedited the claim and ordered that the Secretary of State serve detailed grounds and evidence by 6 May.
The application for interim relief was renewed on the papers before Ouseley J on 30 April. He refused to grant interim relief and decided that the matter should be considered at an oral hearing. He also stated that the Secretary of State's position vis a vis the protective costs order should be considered at that hearing. He extended time for the Secretary of State to lodge its detailed grounds until 14 May. On 17 May the Secretary of State lodged those detailed grounds of defence, along with the witness statement of Clive Peckover. Mr Peckover is the deputy director in the Central Policy Unit of the UK Border Agency, an executive arm of the Home Office.
Interim relief
The principles governing the grant of interim relief in judicial review proceedings are those contained in the well known decision of American Cyanamid Company v Ethicon Limited [1975] AC 396, but modified as appropriate to public law cases. First, the claimant must demonstrate that there is a real prospect of succeeding at trial. This seems to equate with something more than a fanciful prospect of success. In Smith v Inner London Education Authority [1978] 1 All AER 411, the claimants had obtained an interim injunction in relation to the closure of a grammar school. On appeal, Lord Denning acknowledged that American Cyanamid could not automatically fit with public law cases, but held that, without going into details, a public authority should not be restrained from exercising its statutory power or doing its duty to the public unless the claimant could show a real prospect of succeeding at the trial (P418, e to f). Browne LJ said this (at 419, b to c):
“The first question is whether the plaintiffs have satisfied the first requirement laid down by the House of Lords in American Cyanamid Co v Ethicon Ltd: is their action not frivolous or vexatious? Is there a serious question to be tried? Is there a real prospect that they will succeed in their claim for a permanent injunction at the trial? The first two questions were clearly intended to state the same test, because they are joined by the phrase ‘in other words’, and the third cannot, I think, have been meant to state any different one.”
In Sierbein v Westminster City Council [1987] 86 LGR 43, the Court of Appeal agreed with the approach in Smith v Inner London Education Authority, although underlined the importance of the public interest in an application for an interim injunction against a public authority: see Dillon LJ at 440.
In this case the claimant's grounds are detailed, as is their evidence. The Deputy Judge gave permission and commented on the seriousness of the issues. There have also been concerns expressed about the operation of the Section 3 policy by High Court judges. Collins J in R (on the application of T) v Secretary of State for the Home Department [2010] EWHC 435 Admin held one aspect to be unlawful. Openshaw J, as duty judge in late April of this year, commented in a case involving one Oliver Nyam, that the Secretary of State's action of arresting someone at 11.30 pm for removal at 6.30 am the following morning was “completely unconscionable”.
Before me, Mr Swift QC submitted that there was no real prospect of success for this claimant at trial. On its face, the Section 3 policy does not purport to deny access to a court. It has only limited application, and those exceptional cases are for good policy reasons. There are the safeguards contained within the policy, which serve to ensure that it is consistent with the right of access to a court. Situations such as that facing Openshaw J in Nyam demonstrate that access to justice is still available, as in that case, where his Lordship was contacted as duty judge and in the event granted interim relief.
In reply, Ms Rose QC took me to some of the evidence the claimant has assembled. For example, there is a statement by Joanna Swaney, a supervising solicitor at Refugee and Migrant Justice, who has considerable experience in this area. Ms Swaney conceded, as Mr Swift had submitted, that where persons are being removed it is usually the case that they have been through the system and have exhausted their appeal rights. Her experience, however, and that of other solicitors in her team, is that they have regularly represented persons whose cases at an earlier point were inadequately prepared, or where further evidence had come to light undermining the findings made against them. Ms Rose took me to several decisions, such as R (on the application of N) v Secretary of State for the Home Department [2009] EWHC 873 Admin, where the claimant had been given less than 12 hours notice of removal, and where, subsequent to removal, had been able to raise an issue which ultimately led to his establishing his case. Ms Rose QC also highlighted an impact assessment of the Section 3 policy, prepared by the Secretary of State, where the impossibility of lodging a judicial review application in time was candidly acknowledged as a possible adverse impact of the policy.
It would be wrong to express any concluded view about the merits of the case, notwithstanding that the Secretary of State's detailed grounds throw a different light on the matter now that they are available. What can be said, in my judgment, is that the claim does have a realistic prospect of success, given the threshold which that test establishes as defined in the authorities.
The more important issue in considering interim relief in this issue is where the balance of convenience lies. In judicial review, this consideration varies from its application in private law, because generally speaking damages will not be payable in the event of an unlawful administrative act, nor will a public authority suffer financial loss from being prevented from implementing its policy. The public interest is strong in permitting a public authority to continue to apply its policy when ex...
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