S v Secretary of State of the Home Department

Hearing dates: 18 th and 19 th April 2007

Judgment Approved by the court

for handing down

Mr Justice Wyn Williams:

Introduction

The First Claimant is Jamaican. On the 29 ^th October 2002 she came to the United Kingdom with her daughter, the Second Claimant (hereinafter referred to as "C"). At that time the First Claimant was 18 years old and C was 1 ¹/₂ years old. The First Claimant was granted temporary admission but she was required to return to the airport to leave the United Kingdom on 6 ^th November 2002. She failed to do so and, thereafter, she was treated as an absconder. She remained illegally in the United Kingdom.

On 29 ^th July 2005 the First Claimant came to the attention of the Immigration Authorities after she had been arrested in respect an allegation of shoplifting at a supermarket. Between November 2002 and 29 ^th July 2005 she made no attempt to contact the Immigration Authorities or regularise her immigration position. In a witness statement filed in these proceedings, however, she has given, in summary form, an account of what she did and how she lived in that period.

After entering the United Kingdom the First Claimant went to her cousin's home in Harlesden, London. She remained living at that home for approximately 10 months. Her cousin's home was the address which the First Claimant had given to the Immigration Authorities when she was given temporary admission. In the summer of 2003 the cousin moved to Catford and the First Claimant moved with her. It was whilst she was living in Catford that she became pregnant with the Third Claimant ("D"). D was born on 24 October 2004. By the date of his birth the First Claimant had moved from the home of her cousin to a friend in Lewisham. She remained with her friend until approximately four months after D's birth and then returned to Catford to live with another friend.

Shortly before the birth of D, C had started in nursery school. As from January 2005 C attended school from 9.00am to 3.15pm. In the summer term of 2005 the First Claimant applied for C to attend Athelney Primary School in Catford and, as I understand it, C was due to begin at that school in September 2005.

D's father is a Jamaican national. He has played no role in D's upbringing. The First Claimant and the two children have always lived together as a family unit.

Following her arrest at the supermarket, as I have said, the First Claimant came to the attention of the Immigration Authorities. She was taken to the Yarl's Wood Immigration Centre and on 31 July 2005 an Immigration Officer interviewed her. During a discussion with the Immigration Officer the prospect of claiming asylum was raised and on that date the First Claimant claimed asylum.

On 31 July 2005 the First Claimant was released but with a requirement that she report to Gatwick Airport on the 2 August together with C and D. On the 31 July also the First Claimant was told that on the 2 August she would be taken, together with her children, from Gatwick Airport to Oakington Detention Centre. She was also told that she would be kept there for about 14 days.

On 2 August 2005 the First Claimant and her children presented themselves at Gatwick Airport and they were then taken to Oakington. Her claim for asylum was assessed as being suitable for the "fast-track " procedure. A detention review was conducted on 3 August 2005 as the detention involved two children and detention was authorised. On 8 August 2005 the First Claimant was interviewed in relation to her asylum claim. On 10 August 2005 the Claimants' detention was again reviewed and authorised. On 12 August 2005 the asylum claim was refused and certified as clearly unfounded. The written decision to that effect was served on the First Claimant on 15 August 2005.

The First Claimant and her children were not released from detention following the conclusion of the "fast-track " procedure. Rather on 15 August the detention of the Claimants was reviewed and further authorised. It was authorised, in summary, because a decision to deport the Claimants to Jamaica had been taken and it was considered that the First Claimant would abscond with C and D if granted temporary admission or release.

The Claimants have not been deported. They remained in detention until 1 ^st December 2005 and then released.

The Claim Form in these proceedings was issued two days before their release. In the Claim Form the Claimants seek a number of remedies. It suffices for the purpose of this introduction that I record that they seek declarations that their detention for part or all of the period from 2 August 2005 was unlawful.

The Principal Issues in these Proceedings

It seems to me that they are as follows: —

i) As of August 2005, was the Defendant's policy in relation to the detention of families with children lawful or unlawful?

ii) Was the Claimants' detention between 2 ^nd August 2005 and 1 ^st December 2005 unlawful either in respect of the whole or part of that period?

iii) Does D have a claim against the Defendant in respect of a breach of his rights under Article 8European Convention on Human Rights?

I will deal with each of these issues in turn. I deal with issue (i) with a degree of diffidence since, as will become apparent, the lawfulness or otherwise of the Defendant's policy in August 2005 is not critical to my findings upon whether or not the detention of the Claimants was lawful. Since, however, the lawfulness of the policy was the subject of detailed submissions it would be remiss of me to make no finding on the point.

Policy

It is common ground that before October 2001 the Defendant's policy was that families with children could only be detained in exceptional circumstances and for a few days under Immigration Act powers. That policy was set out in the White Paper of July 1998 entitled " Firmer, Faster, Fairer ". The Policy was encapsulated in the following quotation: —

"The detention of families and children is particularly regrettable, but is also sometimes necessary to effect the removal of those who have no authority to remain in the UK, and who refuse to leave voluntarily. Such detention should be planned to be effected as close to removal as possible so as to ensure that families are not normally detained for more than a few days."

In February 2002 the White Paper entitled " Secure Borders, Safe Haven" was published. It is also common ground that this White Paper signalled a shift in policy. In paragraph 4.77 of the Paper the following appeared:

"Families can in some instances give rise to the same problem of non-compliance and thus the need to detain as can be encountered with single adults. Naturally there are particular concerns about detaining families and it is not a step to be taken lightly. Although true of all decisions to detain, it is especially important in the case of families that detention should be used only when necessary and should not be for an excessive period. It was previously the case that families would, other than as part of the fast-track process at Oackington Reception Centre, normally be detained only in order to effect removal. Such detention would be planned to take place as close to removal as possible so as to ensure that families were not normally detained for more than a few days. Whilst this covered most circumstances where detention of a family might be necessary, it did not allow for those occasions when it is justifiable to detain families at other times or for longer than just a few days. Accordingly, families may, where necessary, now be detained at other times and for longer periods than just immediately prior to removal. This could be whilst their identities and basis of claim are established, or because there is a reasonable belief that they would abscond. Where families are detained they are held in dedicated family accommodation based on family rooms in Removal Centres. No family is detained simply because suitable accommodation is available."

Government Policy on the detention of families with children was the subject of debate in the House of Commons on 8 ^th May 2003. During the course of that debate the then Minister for Citizenship and Immigration, Beverley Hughes MP, summarised Home Office Policy in relation to the detention of minors. She said:

"I welcome the opportunity to put on record the Government's policy and practice on the issues [concerning the detention of asylum seeking families and children]……..

My Hon. Friend is right to say that, prior to October 2001, families with children were detained under those powers [the Immigration Act 1971] but, as a matter of policy rather than law using qualified detention criteria that meant that families would be detained only to go through the Oakington fast-track asylum process or for one or two days immediately prior to removal. He is also right to say that in October 2001, it was decided to remove this qualification and to allow for the detention of families under the same detention criteria as others. That was done in recognition of the fact that families – or the adults in families, anyway – can give rise to the same concerns as single adults, in terms of absconding or frustrating removal.

…………..

I entirely reject my Hon....