R (N) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | SIR GEORGE NEWMAN |
| Judgment Date | 18 February 2009 |
| Neutral Citation | [2009] EWHC 873 (Admin) |
| Docket Number | CO/9617/2008 |
| Date | 18 February 2009 |
| Court | Queen's Bench Division (Administrative Court) |
[2009] EWHC 873 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir George Newman
(Sitting as Deputy High Court Judge)
CO/9617/2008
Mr N Armstrong (instructed by Refugee Legal Centre) appeared on behalf of the Claimant
Ms J Richards (instructed by Treasury Solicitors) appeared on behalf of the Defendant
In this case the Secretary of State for the Home Department has through counsel, Ms Richards, conceded that the claimant was unlawfully removed to Uganda on 18th September 2008. It has been conceded that there should be appropriate declaratory relief. The issue for determination is whether there should be a mandatory order requiring the defendant to use her best endeavours to return the claimant to the United Kingdom. It is elementary that this is a matter for the discretion of the court, such discretion to be exercised judicially. In my judgment, in connection with this case, it requires consideration to be given, first of all, to the nature of the unlawful conduct and appropriate characterisation of the gravity of the conduct; and secondly, consideration of the consequences as they effect the claimant, and also whether any public interest consideration should be taken into account.
Between 17th September 2001 and 9th September 2008, the claimant having arrived in the United Kingdom was, from time to time, involved in proceedings in connection with his human rights and asylum claims directed to preventing him being removed to Uganda. The significant underlying factual substance of his claims, has been and remain the fact that, he is a homosexual. There is no issue as to that.
Moving therefore forward through those years, some 7 years, I will go to 30th June 2008, when Mrs Justice Dobbs dismissed an application for reconsideration in connection with further claims which had been advanced on his behalf. He was then in a situation where he was required to report and he did. On 9th September he was detained on reporting and served with removal directions which were set for the 14th September 2008. On 11th or 12th September, the Refugee Legal Centre accepted instructions from him and a fresh human rights claim was submitted. On the 13th September that claim was refused and notice was given in that letter to the effect that he would be removed tomorrow namely the 14th, at 6.40 am.
On 14th September, the attempts to remove him were unsuccessful, and as necessary I will come back and deal with some of the facts surrounding that occasion. It is clear that the unsuccessful removal on 14th was made public. It was reported in a Ugandan newspaper published in Uganda on 15th September. The publication gave rise to further representations from the Refugee Legal Centre dated 16th September. That letter included what was described as:
“…the following fresh evidence …
“1. The New Vision Online: Uganda's leading newspaper —e-mail print out of the newspaper's front page dated 16th September 2008.
“2. The New Vision Online: article from the newspaper's front page —“Gay refuses to return to Uganda” dated 16th September.”
Before: coming to the documents put into court today by the defendant, I will complete this stage of the chronology by referring to a fax dated 17th September which was sent to the Refugee Legal Centre, the next day (the 18th) at 11.57am, being the day upon which he was removed in accordance with a process, which commenced at about 4.30 in the afternoon.
I will now back track in order to cover the position which had been going on behind the scenes and without the knowledge of the Refugee Legal Centre until a letter dated the 18th September was dispatched at 16.54 hours by the Border Agency. That letter, in its most material part, responded to the~request by the Refugee Legal Centre that the claimant should not be removed without further removal directions responded being served and the passage of the minimum notice period which policy required. It stated:
“As you are aware the Enforcement Instruction and Guidance policy provides for departure of the minimum notice period for the service of removal directions. The Detention Services Order 07/2008 provides a specific additional instructions relating to the service of removal directions.
“We have been given the requisite authority to withhold the service of removal directions on your client for reasons provided by the aforesaid order. This authority has been obtained in advance by the Deputy Director (Head of Operations) for Detention Services.”
The passage I have just quoted was not only opaque in its content but on any analysis of what in fact had gone on was simply inaccurate. In truth, after the unsuccessful removal on 14th, which was a Sunday, the future course was determined on the next day.
On Monday 15th September at 2.26 pm an email was sent to Alan Kittle. The email was sent by Tracy Smith, the Operational Casework Manager, UKBA Portsmouth and was sent to Alan Kittle who, I believe, was at Croydon. Anyway, the effect of Tracy Smith's email was as follows:
“I have been asked by Tony Erne, if I can email you regarding the above named applicant currently detained at Tinsley.
“This applicant was detained on 9th September 2008, when he reported to the local reporting centre. Removal directions were set for 14th September 2008 at 6.40 am. On Friday 12th September 2008, Portsmouth were bombarded with letter of support [presumably letters of support] that this applicant should not be removed; this case also attracted media coverage. E-mails were also sent to Brussels regarding his removal by the campaigners.
“The applicant failed to leave the holding room for his flight on Sunday. Removal directions have therefore been reset for 18th September 2008, along with two escorts, applicant has now been booked onto a direct flight with British Airways.
“I spoke to Tony Erne this morning to see if we could serve the removal directions on day of removal or if we can serve the removal directions today but leave out all the flight information and just let him know that he is being removed on Thursday 18th September 2008.
“Could you also confirm that if we have RD's booked [removal directions booked] and for some unknown reason removal does not proceed and new directions are set within five days, then we do have to give them another 72 hours notice of removal.
“Tony is happy with the above but has requested that I email you for clarity.”
Clarity came because Mr Alan Kittle responded, within a short space of time, 3.16 pm:
“As discussed, I am hope happy to authorise this as a same day removal on the grounds that he was previously given 72 hours notice of removal which was cancelled because of his disruptive behaviour.
“I am copying in Fiona Cooper from DEPMU and Debra Weston at Tinsley House for information. Please note that we just inform Mr N when he is collected by the overseas escorts that he is being removed to Uganda, not the flight details. The removal directions paperwork will reflect this and just contain the destination of his removal.”
The events which occurred on 18th were set on 15th. On the 16th September 2008, there having been further representations, the response was drawn up on 17th but not faxed until 18th.
I am satisfied that the decision reached on the 15th September by Mr Alan Kittle, which resulted in the conduct on 18th September, was manifestly unlawful. I will break down the heads of unlawful conduct. On my analysis Mr~Kittle's decision was driven, because it was a decision made on 15th September, firstly by a completely wrong headed conclusion that fresh removal instructions did not trigger a 72 hour notice requirement; or at least did not trigger a 72 hour notice requirement when there was evidence of disruptive behaviour. That equally was completely wrongheaded because disruptive behaviour cannot of itself alter the obligation which exists that there is by reason of declared policy to allow 72 hours by way of moratorium between the service of removal directions and actual removal. It seems to me that anybody in the position of Mr Alan Kittle, or anybody else concerned as officers of the Border Agency, must have known that the 72 hour requirement was designed to provide an opportunity for the person to be removed to have access to a lawyer for legal advice and to enable, in accordance with the policy as laid out, any application for judicial review to be commenced and for the court to become involved.
I am not concerned on this application to consider what circumstances could arise in which, as the DSO7/2008 suggests, the 72 hour notice can be dispensed with, namely a record of non compliance and such a level of serious disruptive behaviour which might, in certain practical circumstances, lead to the need to dispense with the 72 hour requirement. That, if it is to be challenged as part of the policy, seems to me to arise for another day, it is not something I need determine here, since I am content to decide, on the material about which I am certain, what the appropriate relief should be without entering into that area of contention.
The facts surrounding the removal on 18th September have been deposed to by the claimant in a witness statement and he states as follows, paragraph 16:
“On Thursday 18th September, security in Tinsley House came for me at around 4.30 pm. They confiscated by mobile phone and said that this was procedure. I was very worried and I asked them where I was going. They said to me, “we're taking you for an interview...
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