R NXT (First Claimant) SBX (a child by her litigation friend, NXT) (Second Claimant) TFX (a child by his litigation friend, NXT) (Third Claimant) KFX (a child by his litigation friend, NXT) (Fourth Claimant) v Secretary of State for Home Department The Children's Commissioner for England (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blair |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] EWHC 969 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 April 2011 |
| Docket Number | Case No: CO/8568/2010 |
[2011] EWHC 969 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Blair
Case No: CO/8568/2010
and
Ms Stephanie Harrison (instructed by Bhatt Murphy Solicitors) for the First Claimant
Ms Kathryn Cronin (instructed by Bhatt Murphy) for the Second, Third and Fourth Claimant
Mr Richard Kimblin (instructed by The Treasury Solicitor) for the Defendant
Ms Nadine Finch (instructed by Deighton Guedella) for the Intervener – The Children's Commissioner
Hearing dates: 22, 23 & 24 March 2011
This is an application for judicial review. A number of issues arise, but in substance, the case arises out of the detention of the first claimant NXT, who is a Jamaican national, following the expiry of her prison sentence for possession Class A drugs with intent to supply. The first claimant's date for release on licence was 16 October 2009. From that time, she was detained under the powers dealing with "automatic deportation" in s.36 UK Borders Act 2007. Some time later, deportation orders were made in respect of her and her three children, who are the second to fourth claimants. She was granted bail on 15 September 2010, and thereafter has been reunited with her two younger children. In these proceedings, the claimants seek judicial review on the grounds that the mother's detention and the subsequent deportation orders made in respect of her and the children were unlawful and/or in breach of their Convention rights.
It is necessary to say something about the procedural history. The deportation orders were made on 19 July 2010. Appeals were lodged with the First-tier tribunal in Birmingham on 22 July 2010. These judicial review proceedings were begun on 11 August 2010. An order was made by Hickinbottom J on 11 August 2010 that the defendant, the Secretary of State for the Home Department, lodge an acknowledgment of service and summary grounds of defence by 27 August 2010. That was duly done, and among other things the defendant drew attention to the fact that a substantive hearing had been listed by the First-tier tribunal for 31 August 2010, and though that had been adjourned on the claimant's application in these proceedings, it was the defendant's case that the claimants had an alternative remedy, and thus the matter should not proceed in this court.
Regrettably, and through no fault of the parties, the acknowledgment of service was not passed to Collins J when he came to consider permission on the papers on 6 September 2010. He granted permission, noting what he believed to be the failure on the part of the defendant to comply with Hickinbottom J's order, with the consequence that he had to consider permission without assistance from an acknowledgment of service. (In fact as I have said the defendant had complied.) Collins J went on to observe that while the claimant was clearly a person whose presence in this country was not conducive to the public good, the position of the children had to be considered, and the scope of s.55 Borders, Citizenship and Immigration Act 2009 needed to be determined. He was "far from persuaded that the detention of the claimant was necessarily wrong", but the question should be dealt with. By that time, the Children's Commissioner of England had sought permission to file evidence and make oral representations as an intervener. Collins J thought that the Commissioner may be able to provide helpful submissions and that it would be for the judge hearing the claim to decide whether to allow oral submissions. (I did allow such submissions, and they have been helpful.)
There were developments close to the hearing as follows. In her skeleton argument lodged on 17 March 2011, and subsequently by letter, the defendant stated that she wished to reconsider the deportation orders in respect of both the mother and child claimants. The reasons for doing so arose from the change in factual circumstances (including the fact that the first claimant is now pregnant) and the law, the latter being a reference to the decision of the Supreme Court in ZH (Tanzania) v Secretary for the Home Department [2011] 2 WLR 148, a decision handed down on 1 February 2011. This was not acceptable to the claimants, who considered that the defendant should withdraw the decision to deport, and admit liability for the unlawful detention of the first claimant.
Meanwhile, the appeals in respect of the deportation orders, and associated claims, including the first claimant's asylum claim (which was refused at the same time as the deportation order) have not been heard. I am told that a directions hearing has been fixed for 18 April 2011. At this point, I would note that the claimants are represented by different solicitors in the appeal proceedings. I was told that this was because their solicitors in these proceedings have no contract with the Legal Services Commission for immigration or asylum work. The consequence is that the claimants are represented by different lawyers in different proceedings both concerned with challenges to the deportation orders, in the one case on judicial review grounds, and in the other, substantive appeals on the merits. At this point, it is sufficient to say that the defendant maintains her submission first advanced in her Acknowledgment of Service that, so far as these judicial review proceedings are concerned with challenges to the deportation orders, the claimants have an alternative remedy, and their judicial review claim in that respect should not be entertained.
Finally, I should note that the decision of the Supreme Court in Walumba Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12 was handed down on the second day of the hearing. It is now the leading authority on whether, and if so in what circumstances, breaches of public law are capable of rendering unlawful the detention of foreign national prisoners pending their deportation. Counsel agreed that the issues in that case are mainly different from those that arise in the present case, but I gave them an opportunity to add to their submissions in writing after the conclusion of the hearing (further submissions were sent).
The facts
The evidence is in the form of statements from the first claimant and her daughter the second claimant, a statement from the Children's Society, a statement from Bail for Immigration Detainees, the factual record as contained in various bundles including the agreed bundles, and various chronologies including those in the pleadings and skeleton arguments. There was clearly a mass of material as regards this case generated within the UK Border Agency alone, and the documentation for the hearing could have been voluminous, but it has been condensed into an exemplary core bundle by the claimants' solicitors.
The facts are nevertheless not easy to summarise, and a considerable number of points of detail have been raised. The first claimant was born in 1978, and is a Jamaican national. She came to the United Kingdom in 2000 having been granted leave to enter for one month as a visitor. She was detained on 12 December 2001 having overstayed and arrested after attempting to apply for a British passport using a stolen blank birth certificate. She was removed to Jamaica on 12 December 2001. It seems that the third claimant, her son TFX, born in Jamaica on 14 January 1998, came to the UK in 2001. On 20 April 2002, the first claimant attempted to enter the United Kingdom using another person's passport, and was granted temporary admission, from which she absconded on 26 April 2002. It appears that the second claimant, SBX, her daughter born in Jamaica on 15 January 1995, came to the UK that year, but according to the defendant, there is no evidence of lawful entry. According to the skeleton argument filed on their behalf, SBX and TFX are half siblings. The fourth claimant, KFX, is the first claimant's son, and the only child who was born in the UK (on 18 February 2003).
On 1 March 2005, the first claimant was convicted of three counts of shop lifting, and fined. On 5 December 2006, she was convicted of three further counts of shop lifting, and given a 12 month Community Order with a requirement to complete 100 hours unpaid work. She failed to attend induction sessions for this. Breach proceedings were instigated in the magistrate's court, and a warrant issued for her arrest.
On 17 July 2007, the first claimant was arrested in connection with much more serious charges of drugs dealing, and remanded in custody. On 14 September 2007 (following a guilty plea) she was convicted of two counts of possessing Class A drugs with intent to supply.
From this point in time, the family was separated. The second claimant went to live with her father in Cardiff. The third claimant went to live with his paternal grandfather in Cambridge. The fourth claimant went to live with a close friend of his mother's in London.
On 2 June 2008, the first claimant was convicted (again following a guilty plea) of two further counts of possessing Class A drugs with intent to supply. It seems from the sentencing remarks that in all there were two sets of offences, one committed in December 2006 (the first conviction), and one in July 2007 for which she had been arrested. Both came on for sentence in Cambridge Crown Court on 8 August 2008. At that point in time, the first claimant was aged 29.
In the usual way, there was a Pre-Sentence...
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