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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Saadi & Ors, R (on the application of) v Secretary Of State For Home Department [2001] EWHC Admin 670 (7th September, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/670.html Cite as: [2001] EWHC Admin 670 |
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Case No: CO/0074/01
CO/4559/00
CO/4533/00
Neutral Citation Number: [2001] EWHC Admin 670
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday
7 September 2001
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The Queen on the Application of: |
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Shayan Baram SAADI |
Claimants |
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- and - |
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Secretary of State for the Home Department |
Defendant |
1. The three claims involving four claimants which have been heard together before me raise the question whether detention at what is called the Oakington Reception Centre is lawful. The claimants are Kurds from Iraq. They arrived in this country in December 2000 and claimed asylum. It was decided that their claims should be considered at Oakington and that therefore they should be detained there for up to 10 days while interviews and other enquiries were made. Each was then released from detention. It was common ground that their release was no bar to the continuation of the judicial review proceedings since the lawfulness of the detention was material to a possible claim for damages and in any event was an issue which needed to be determined.
2. Powers to detain those seeking entry to or who are to be removed from the
United Kingdom are contained in Schedule 2 to the Immigration Act 1971.
Paragraph 2 entitles an immigration officer to examine any person arriving in
the United Kingdom to determine whether he should be given leave to enter and
Paragraph 16(1) provides:-
"A person who may be required to submit to examination under Paragraph 2 above
may be detained under the authority of an immigration officer pending his
examination and pending a decision to give or refuse him leave to enter."
Paragraphs 8, 9 and 10 enable an immigration officer (or if certain conditions
which I need not detail are fulfilled the Secretary of State) to remove those
refused leave to enter or illegal entrants and Paragraph 16(2) (as substituted
by the Immigration and Asylum Act 1999) provides:-
"If there are reasonable grounds for suspecting that a person is someone in
respect of whom directions may be given under any of Paragraphs 8 to 10 ....,
that person may be detained under the authority of an immigration officer
pending -
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
Paragraph 21(1) enables an immigration officer to grant temporary admission to
the United Kingdom to any person liable to be detained. Section 4 of the 1999
Act (which came into force on 11 November 1999) enables the Secretary of State
to provide or arrange for the provision of "facilities for the accommodation of
persons" temporarily admitted to the United Kingdom or released from detention
or granted bail under the Immigration Acts. And Paragraph 21 has been amended
by Paragraph 62 of Schedule 14 to the 1999 Act by the addition of
sub-paragraphs (2A) to (2E). Sub-paragraphs (2) to (2E) now read as
follows:-
"(2) So long as a person is at large in the United Kingdom by virtue of this
Paragraph, he shall be subject to such restrictions as to residence, as to his
employment or occupation and as to reporting to the police or an immigration
officer as may from time to time be notified to him in writing by an
immigration officer.
"(2A) The provisions that may be included in restrictions as to residence
imposed under sub-paragraph (2) include provisions of such a description as may
be prescribed by Regulations made by the Secretary of State.
("2B) The Regulations may, among other things, provide for the inclusion
of provisions -
(a) prohibiting residence in one or more particular areas;
(b) requiring the person concerned to reside in accommodation provided under
section 4 of the Immigration and Asylum Act 1999 and prohibiting him from being
absent from that accommodation except in accordance with the restrictions
imposed on him.
(2C) The Regulations may provide that a particular description of provision may
be imposed only for prescribed purposes.
(2D) The power to make regulations conferred by this paragraph is exercisible
by statutory instrument and includes a power to make different provision for
different cases.
(2E) But no regulations under this paragraph are to be made unless a draft of
the Regulations has been laid before Parliament and approved by a resolution of
each House. "
I shall have to consider those powers and their scope in due course.
3. Before March 2000, when the opening of Oakington was announced, the Home
Office policy on the use of detention was set out in a White Paper published in
1998 and entitled:
"Fairer, Faster and Firmer - a Modern Approach to Immigration and Asylum"
in these terms (Paragraph 12.3):-
"The Government has decided that, whilst there is a presumption in favour of
temporary admission or release, detention is normally justified in the
following circumstances
- where there is a reasonable belief that the individual will fail to keep the
terms of temporary admission or temporary release;
- initially, to clarify a person's identity and the basis of their claim; or
where removal is imminent."
" In particular, where there is a systematic attempt to breach the immigration
control, detention is justified wherever one or more of those criteria is
satisfied "
In
R v Special Adjudicator and Secretary of State for the Home Department ex
p. B
[1998] Imm.A.R. 182, Kay J referred to the policy on detention prior
to the 1998 White Paper. It was that detention should only be used where there
was no alternative and as a last resort. It does not appear that the 1998
White Paper was intended to change that policy. In Paragraph 12.11 it was made
clear that detention should be for the shortest possible time and Paragraph
12.7 required that written reasons should be given at the time of the
detention. Thus, prior to the Oakington regime, detention was in effect to be
limited to those cases where there was a concern that the individual might
abscond or otherwise fail to comply with any terms of temporary admission,
where there was a need to discover what was an individual's true identity, (for
example, where false documents were presented) or where removal was
imminent.
4. On 16 March 2000 the Minister (Mrs Barbara Roche) announced a change in a
written answer to a parliamentary question. She said this:-
"Oakington Reception Centre will strengthen our ability to deal quickly with
asylum applications, many of which prove to be unfounded. In addition to the
existing detention criteria, applicants will be detained at Oakington where it
appears that their application can be decided quickly, including those which
may be certified as manifestly unfounded. Oakington will consider applications
from adults and families with children, for whom separate accommodation is
being provided, but not from unaccompanied minors. Detention will initially be
for a period of about seven days to enable applicants to be interviewed and an
initial decision to be made. Legal advice will be available on site.
If the claim cannot be decided in that period, the applicant will be granted
temporary admission or, if necessary in line with existing criteria, moved to
another place of detention. If the claim is refused, a decision about further
detention will similarly be made in accordance with existing criteria. Thus,
detention in this latter category of cases will normally be to effect removal
or where it has become apparent that the person will fail to keep in contact
with the Immigration Service."
In a statement which has been put before me on behalf of the Secretary of
State, Mr. Ian Martin, an inspector in the Immigration and Nationality
Directorate in the Home Office, has explained what he describes as the thinking
behind Oakington in these terms (Paragraph 10):-
"This was to be a centre at which asylum applications would be decided quickly,
within about seven days. In order to achieve that objective for significant
numbers of Applicants, an intensive consideration and decision process was
required. In particular, it was considered essential that Applicants should be
available for an early interview and to submit any further representations that
may be judged necessary. It was also considered important that they should be
readily available for the decision to be served. The Home Office's experience
is that many Applicants, particularly those whose applications are likely to be
unfounded, are unwilling to comply with fast-track asylum procedures. In the
Government's view, the aim of considering and deciding asylum claims within
about seven days for substantial numbers of Applicants were best achieved by
requiring Applicants to reside at Oakington, under existing immigration
detention powers."
5. It is thus apparent that a decision to detain at Oakington is not based on
any considerations whether the Applicant in question may abscond or otherwise
fail to comply with terms of temporary admission. Indeed, the overriding or,
as Mr. Martin puts it, the governing criterion is whether the claim appears
capable of being decided quickly. To assist immigration officers in deciding
on suitability, a list of nationalities has been drawn up which can justify
consideration at Oakington because they are expected to be simple to deal with.
Those lists are amended from time to time and in some cases they are limited to
particular individuals within certain nationalities. Asylum seekers from Iraq
are included, but the description in the list reads as follows:-
"Iraq - must speak Sorani, only Kurds from autonomous area, usually from
Suleymaniya, Dohuk and Irbil and their provinces but please phone for further
advice."
In a letter of 19 October 2000 to the Refugee Legal Centre (RLC), the Home
Office approach to Kurds from Iraq was explained in these terms:-
"As you know, it has been decided to process through Oakington ... those Iraqi
asylum applicants whose claims appear straightforward i.e. Kurds from the
Kurdish Autonomous Area in Northern Iraq who claim they are at risk because of
their membership of one of the Kurdish political parties."
This was part of a correspondence in which the RLC were asserting that Iraqi
Kurds were not simple cases and should not therefore qualify for consideration
at Oakington.
6. The guidance on suitable cases for Oakington as might be expected identifies
those which are to be regarded as unsuitable. Those are:-
"+ any case which does not appear to be one in which a quick decision can be
reached.
+ any case, which has complicating factors, or issues, which are unlikely to be
resolved within the constraints of the Oakington process model.
+ age dispute cases, other than those where there is clear and irrefutable
documentary evidence that the applicant is aged over 18 years.
+ disabled applicants, save but the most easily manageable.
+ any person who has special medical needs, save but those which can be managed
within a GP surgery environment.
+ any person who gives reason to believe that they might not be suitable for
the relaxed Oakington regime.
+ any person whose detention would be contrary to published detention
criteria.
Apart from the final category, there may be very good reasons for
accommodating someone who falls into one of the unsuitable categories from time
to time and this document should be considered merely as a statement of
intent.
"
The `published detention criteria' are set out in Paragraph 38.8 of the
Operational Enforcement Manual. They include persons "where there is
independent evidence that they have been tortured". In addition, at Paragraph
38.3.1 Oakington is specifically referred to and the list of those unsuitable
for it is set out. There is a significant qualification to the penultimate
entry in the list to which I have already referred. In 38.3.1 this reads:-
"any person who gives reason to believe that they might not be suitable for the
relaxed Oakington regime, including those who are considered likely to
abscond."
7. It is therefore clear that detention at Oakington is based on two criteria
only. First, is the applicant a national of a country and, if so, does he have
the relevant characteristics (if any) which show that his claim is likely to be
able to be dealt with quickly and, more particularly, within the 7 to 10 day
timescales allowed for? Secondly, is there any reason why he is otherwise
unsuitable for detention at Oakington? Not only are the pre-existing criteria
for detention irrelevant but they are a contra-indication. Someone who may
abscond would not be suitable. This has led Mr. Scannell to submit that
detention at Oakington is for administrative convenience. It is desirable that
the applicant be available for interview and to answer any subsequent queries
and that can best be achieved by detaining him to ensure his presence. It is
also desirable that he should have access to proper advice and representatives
and that is also provided for at Oakington through the RLC and the Immigration
Advisory Service. In addition, interpreters are available at all material
times. The justification is expressed by Mr. Martin in these terms:-
"In this way, the Oakington procedure is intended to help facilitate the entry
into the United Kingdom of those who are entitled to do so and to prevent the
entry (and facilitate the removal) of those who are not entitled to enter and
would be making an unauthorised entry."
8. I am bound to say that I have considerable sympathy with Mr. Scannell's submission. The detention of the individual is not because he has done anything which might usually be considered as a justification for depriving him of his liberty but because his application can more easily be dealt with speedily and so the rate of disposal generally can be improved. As long ago as 1943 Lord Atkin observed that convenience and justice were often not on speaking terms (see GMC v Spackman [1943] 2 All E.R. 357). However, even if the detention is dictated by an administrative convenience, it may still be lawful, particularly if the advantages to immigration control and decision making in general can be regarded as a proper justification for it. Mr. Pannick, Q.C., does not accept that it is proper to regard the Oakington regime as detention for administrative convenience. In any event, he suggests that to try to label it is unhelpful. I must look to see whether the power that undoubtedly exists is being used for a proper purpose. If it is, the immigration officers can decide, guided by the Secretary of State, when it is to be used. The purpose is set out in Paragraph 16 of Schedule 2 to the 1971 Act. It is undoubtedly being used for that purpose. Thus, whatever pejorative descriptions may be used, detention is lawful, certainly in terms of domestic law without considering the impact of the European Convention on Human Rights.
9. Before going further, I should deal with the circumstances of the claimants
before me. The material facts in each case can be stated shortly.
(i) Dr. Saadi
Shayan Saadi is a doctor of medicine. He arrived at Heathrow on 30 December
2000 and immediately claimed asylum. His claim was based on the contention
that he had worked for the Iraqi Workers Communist Party and, in the course of
his duties at a hospital, he had treated three members of that party who had
been injured in an attack by the Patriotic Union of Kurdistan. This had
resulted in his arrest and detention by the PUK and had led to his decision to
flee. The documents produced show that the immigration officer dealing with
his claim contacted Oakington, since his claim appeared to qualify, and
Oakington agreed to take him, but there was no room for him there until 2
January 2001. He was therefore granted temporary admission until then, when he
was detained and taken to Oakington. Following an interview, his asylum claim
was refused on 8 January and on 9 January he was granted temporary admission.
On 5 January, the RLC wrote to IND requesting his release on the ground that
his detention was unlawful. The main matter relied on, which I shall deal with
when I have recited the facts of all the claims, was that Iraqi Kurds should
not be dealt with at Oakington because their applications could not properly be
regarded as simple.
(ii) Zhenar Maged
Mr. Maged arrived at Dover on 6 December 2000. He was found hiding in a lorry
together with a number of other illegal entrants. He claimed asylum on the
basis that he had acted against the interests of the PUK, of which he was a
member, and so feared persecution by them. He was dealt with at Oakington and
on 16 December 2000 his claim was refused. On 9 December the RLC wrote
requesting his release and reasons for his detention in much the same terms as
in the case of Dr. Saadi. He has been granted temporary admission.
(iii) Dilshad Osman
Mr. Osman arrived hidden in a lorry with four others at Dover on 4 December
2000. He claimed asylum at Croydon where he may have been referred by the
authorities at Dover. It is not entirely clear on the evidence how he came to
apply at Croydon rather than at Dover. In any event, he was referred to
Oakington and his claim was based on the contention that he was a PUK activist
who lived in Makhwar, a town under Iraqi government administration. His
application was refused on 11 December 2000 and he was granted temporary
admission on 12 December. On 7 December the RLC wrote a letter requesting his
release (and that of his fellow claimant Mohammed) in similar terms to those in
the other cases.
(iv) Rizgan Mohammed
Mr. Mohammed arrived hidden in a lorry on the same day as Mr. Osman. His
application for asylum was based on fear of persecution by the Islamic Movement
of Iraqi Kurdistan which he, as a member, was suspected of having in some way
betrayed. He says he claimed asylum at Dover but was referred to Croydon
because no interpreter was available. His claim was dealt with at Oakington
and was refused on 11 December 2000. He was granted temporary admission on 12
December. The RLC letter requesting his release was in similar terms to those
in the other cases.
10. It is to be noted that Messrs Maged, Osman and Mohammed were all illegal entrants who, but for their asylum claims, would have been removed as such. Dr. Saadi on the other hand arrived openly at Heathrow and sought leave to enter as a refugee. The distinction may be important when I come to consider the impact of Article 5 of the European Convention on Human Rights.
11. One complaint which has been made in each of these cases is that none of
the claimants was told why he was being detained. I have already mentioned the
requirement that written reasons should be given at the time of the detention.
A form IS91R headed `Reasons for Detention and Bail Rights' is provided to
immigration officers. It must be filled out and handed to the person who is to
be detained. At the material time, it stated that detention was being ordered
under powers contained in the Immigration Acts and continued:-
"Detention is only used when there is no reasonable alternative available. It
has been decided that you should remain in detention because ..."
There then follow five reasons (a to e) against which are boxes which should be
ticked. The five reasons are:-
a. You are likely to abscond if given temporary admission or release.
b. There is insufficient reliable information to decide on whether to grant you
temporary admission or release.
c. Your removal from the United Kingdom is imminent.
d. You need to be detained whilst alternative arrangements are made for your
case.
e. Your release is not considered conducive to the public good.
The form continues:-
"This decision has been reached on the basis of the following factors ..."
There are then thirteen factors with boxes to be ticked if a particular one
applies. They include the absence of "enough close ties to make it likely that
you will stay in one place", a previous failure to comply with conditions or a
previous absconding, a use of deception, a failure to give satisfactory answers
to an immigration officer, a failure to produce satisfactory evidence of
identity, nationality or lawful basis to be in the United Kingdom and
unsatisfactory character, conduct or associations. I have referred to all
those that could conceivably be relevant in the circumstances of cases such as
those which are before me.
11. Mr. Martin says that a `structural problem' arose during 2000 regarding
the content of the form IS91R `concerning the options of its language to cover
Oakington detention'. It apparently took the Home Office 3 months to realise
that the wording was clearly not appropriate for Oakington detention which
depended on nothing more than that the individual in question came from a
country on the relevant list because his claim could, it was believed, be
processed quickly. So on 7 June 2000 it was said in the General Orders to
Immigration Officers:-
"We are currently reviewing the IS91R reasons for detention form. The revised
form, which will be issued shortly, will take account of the revised Oakington
criteria."
Nothing seems to have been done since the Enforcement Manual records on 21
December 2000 that the form was currently being revised and that the revised
version would be issued shortly. When Mr. Martin made his statement on 12
April 2001, the form had still not been revised, but an addendum had been
attached with effect from 2 February 2001 which reads:-
"Reason for Detention
I have decided that you should be detained because I am satisfied that your
application may be decided quickly using the fast track procedures established
at Oakington Reception Centre.
In reaching this decision I have taken into account that, on initial
consideration, it appears that your application may be one which can be decided
quickly."
12. It is, says Mr. Martin, a matter of regret that the form lagged behind the
change in policy. I would use much stronger language. It is a disgrace. To
include the Oakington reason for detention would have been simple and why it
took nearly 11 months to produce the addendum is difficult to understand. The
result was that immigration officers had to give the detainee information which
may well have been inaccurate. Mr. Martin says this:-
" ... the existing version of the form was the only one available to the
immigration officers who dealt with these claimants. No doubt this will have
presented a dilemma to officers. Given the availability of Oakington and the
known criteria as to suitability, I strongly suspect that the old form IS91R
was being used by ticking boxes which were considered to be present as
additional factors in a case, or at least were the closest fit from a range of
choices which did not readily encompass the new Oakington policy."
The form clearly indicated that detention was only used where there was no
reasonable alternative. All the reasons and factors reflect some possible
misconduct by the detainee or the need for him to be cared for by detention.
As Mr. Martin concedes, it was wholly inappropriate for Oakington detention and
it is for example, difficult to follow what reason could conceivably have been
close to fitting Dr. Saadi's case. Unfortunately, the copy of the IS91R which
should have been retained on the file has disappeared and so I do not know, nor
does Dr. Saadi, why it was said he should be detained.
13. The vice of this is that reasons will be on file which are not accurate. The applicant may be branded as a possible absconder or be said to have committed some other misdemeanour and this will be on his file and may be held against him in future. Furthermore, the law requires that a person be informed why he is being detained and the information must be accurate.
14. As I have said, Dr. Saadi's IS91R is missing. In Mr. Maged's case, none of
the boxes a to e is ticked, but box 6 of the factors upon which the decision
has been reached, which reads "You have not produced satisfactory evidence of
your identity, nationality or lawful basis in the U.K." has been ticked. That
is said to have been appropriate, but it was not the reason why detention was
ordered and we do not know what oral explanation was given to Mr. Maged. In
Mr. Osman's case, the immigration officer has ticked boxes a and b and relied
on lack of close ties, use of deception and failure to produce satisfactory
evidence of identity etc. In Mr. Mohammed's case, only box b has been ticked
and the factors relied on are use of deception and failure to produce
satisfactory evidence of identity etc. The answer to the RLC's letters of 7
December states:-
"Your client has been detained at Oakington on the basis of this restatement of
detention criteria at Oakington Reception Centre. The determining officer
concluded that it appeared that your client's application could be decided
quickly on the basis of various factors including your client's nationality.
The fact that your client's individual circumstances were considered by the
determining officer in reaching his decision to detain in accordance with
current detention policy indicates that all relevant factors were taken into
account."
Mr. Martin accepts that there is a `tension' between what is said in the letter
and the IS91R.
15. The use of inappropriate forms and the giving of reasons for detention on those forms which may not have been wholly accurate do not affect the lawfulness of the detention. The real reason was the new Oakington process. If that was lawful, the disgraceful failure to prepare proper forms cannot render it unlawful. In any event, it may be that in the cases of the illegal entrants the immigration officers could properly rely on at least the absence of identification and the clandestine entry as factors justifying detention even if, had Oakington not been used, temporary admission would have been granted. I do not need to go into the matter further since Mr Scannell has not sought to argue that the muddle about reasons renders the detentions unlawful.
16. It was suggested that to regard Iraqi Kurds as appropriate to be dealt with at Oakington was wrong. Reliance was placed on a UNHCR letter of 27 November 2000 which indicated that the volatile political climate and shifting alliances in Northern Iraq made the assumption that the KDP and the PUK could provide protection in their respective areas unsustainable. The letter assumed that Oakington was to be used where claims were likely to be decided to be manifestly unfounded. That assumption was incorrect; indeed, none of the claimants' applications has been regarded as manifestly unfounded. Naturally, some applications will be referred to Oakington because it is believed that they are manifestly unfounded. Such cases can often be dealt with quickly. The Home Office has explained why it believed that Kurds from northern Iraq could often be processed quickly. I do not think that Mr. Scannell has come anywhere near establishing that that view was irrational. The fact that a claim can be and is processed speedily does not mean that it is not properly considered. All claims should be processed as quickly as possible and all that is being done at Oakington is to choose those which seem likely to be able to be processed more quickly than others.
17.Complaint has been made that the screening process is inadequate so that some who should not be detained (for example, because they have suffered torture in the past) may be. At an early stage, (usually on the second day) the detainee is seen by a legal representative. If anything is then raised which shows that he should not be detained, it can be put to the authorities and release should follow. If it does not, an immediate application for habeas corpus can be made. In any event, Mr. Martin has indicated that suitability is kept under review and the instructions are that anyone who turns out to be unsuitable should not be kept at Oakington.
18. Mr. Scannell has submitted that detention is arbitrary because, due to the limited numbers that can be accommodated, it is a matter of chance whether an individual goes to detention at Oakington or gets temporary admission to have his application dealt with in a different fashion. The criteria for admission to Oakington are not themselves arbitrary. Certain nationalities are listed because and only because the view has been taken that they are likely to be able to be processed quickly. Thus any discrimination is not unlawful, since the decision that nationality should be adopted as a criterion is objectively justifiable. The fact that there is limited room at Oakington cannot create arbitrariness. To suggest that a regime such as Oakington cannot be instituted until there is room for all those who might qualify is absurd.
19.Mr. Scannell has submitted that the powers to detain contained in the 1971 Act require that individual consideration be given to each detainee's circumstances and that a person be detained only if it is reasonably necessary to detain him. The desirability of speedy decision making cannot itself justify detention, at least unless detention is the only possible means of achieving the purpose of making a decision on an asylum claim. Thus in effect the criteria for detention set out in the 1998 White Paper must govern the lawfulness of detention. Further, detention must be only for as long as is necessary to achieve the relevant purpose. That last submission is uncontroversial: as Mr. Pannick says, it is unarguable that seven to ten days is excessive to consider an application for asylum.
20.Mr. Scannell has relied on
Tan Te Lam v Superintendent of Tai A Chau
Detention Centre
[1997] AC 97, a decision of the Privy Council on appeal
from Hong Kong. That case involved a claim by Vietnamese Boat People that
their detention `for several years' pending removal from Hong Kong was
unlawful. The relevant statute permitted detention pending removal. It was
not argued that there was a limit on the power so that only those who might
otherwise abscond or otherwise misbehave if allowed their liberty could be
detained. The appeal was based on the contention that the power was limited to
circumstances where removal could be achieved within a reasonable time.
Reliance was placed on a decision of Woolf J in
R v Governor of Durham
Prison ex parte Hardial Singh
[1984] 1 WLR 704. At page 111A - E Lord
Browne-Wilkinson, giving the judgment of the Committee, said this:-
"Section 13D(1) confers a power to detain a Vietnamese migrant "pending his
removal from Hong Kong." Their Lordships have no doubt that in conferring such
a power to interfere with individual liberty, the legislature intended that
such a power could only be exercised reasonably and that accordingly it was
implicitly so limited. The principles enunciated by Woolf J in the
Hardial
Singh
case [1984] 1 WLR 704 are statements of the limitations on a
statutory power of detention pending removal. In the absence of contrary
indications in the statute which confers the power to detain "pending removal"
their Lordships agree with the principles stated by Woolf J. First, the power
can only be exercised during the period necessary, in all the circumstances of
the particular case, to effect removal. Secondly, if it becomes clear that
removal is not going to be possible within a reasonable time, further detention
is not authorised. Thirdly, the person seeking to exercise the power of
detention must take all reasonable steps within his power to ensure the removal
within a reasonable time.
Although these restrictions are to be implied where a statute confers simply a
power to detain "pending removal" without more, it is plainly possible for the
legislature by express provision in the statute to exclude such implied
restrictions. Subject to any constitutional challenge (which does not arise in
this case) the legislature can vary or possibly exclude the
Hardial
Singh
principles. But in their Lordships' view the courts should construe
strictly any statutory provision purporting to allow the deprivation of
individual liberty by administrative detention and should be slow to hold that
statutory provisions authorise administrative detention for unreasonable
periods or in unreasonable circumstances".
21.There is no doubt that the powers contained in the Immigration Act 1971 to detain must be strictly construed. But there is in my judgment no reason to limit the power in the way Mr. Scannell submits. The purpose is clearly set out in Paragraph 16(1) and (2). In particular, Paragraph 16(1) enables a person to be detained `pending a decision to give or refuse him leave to enter'. That is the purpose for which Dr. Saadi was detained and that and the possible use of Paragraph 16(2) justified the detention of the other claimants. Neither Hardial Singh nor Ten Te Lam is authority for the proposition that such powers can only be used where it is necessary to use them because otherwise, for example, the applicant might abscond. The only limitation is that it must be for a reasonable time. Lord Browne-Wilkinson's reference to unreasonable circumstances at the end of the passage cited was I believe intended to cover a situation where, for example, the purpose could not be achieved at the time of the detention within a reasonably foreseeable period or where the individual circumstances of a person made a decision to detain him unreasonable. So in the context of the cases before me it would be unreasonable to detain someone who was unsuitable for detention. I accept Mr. Pannick's submission that, provided the power is (as is the case here) being used for a purpose permitted by the statute, it is for the Secretary of State to decide (subject to rationality) on the circumstances in which it should be used. It would have been open to Parliament to put specific limits on the power to detain (as has been done obliquely in the Bail Act). It has not done so in the Immigration Act.
22. Mr. Scannell has relied on
R v Secretary of State for the Home
Department ex parte Brezinski & Glowacka
(Unreported: 19 July 1996).
But that case was heard at a time when the policy was to use detention only as
a last resort. In that case (at page 6 of the transcript before me) Kay J said
this:-
"It seems to me that this is at the very heart of the decision-making process
in cases such as these. It is, one adds, not very different from the sort of
approach that is clearly employed and properly employed by those who have to
consider bail in other contexts. One weighs all the various factors. One only
restricts a person's liberty if it is essential to do so and one judges that by
having regard to all the factors that are properly to be considered in their
particular case."
This cannot be used to set a general approach to detention in all cases.
Apart from Oakington cases where there are reasons to detain to achieve a
speedy decision, the policy of last resort must very properly prevail, but
those observations cannot apply where there is a statutory purpose behind the
detention. It suffices that the Secretary of State reasonably regarded it to
be necessary to detain to enable those cases to be dealt with speedily. In
Secretary of State for the Home Department v Khan
[1995] Imm A.R. 348
the Court of Appeal was concerned with the detention of illegal entrants who
had claimed asylum and had been served with notices that removal was proposed.
In the meantime, they were detained under Paragraph 16(2). Mr. Pannick, who
appeared for the Secretary of State in that case, argued that the claims for
asylum did not prevent Paragraph 16(2) applying: they merely protracted the
period during which detention could properly be ordered. That argument was
accepted. But in giving judgment, Leggatt LJ said (page 334):-
"Although the immigration officer intends to give directions for the removal of
the respondents, he cannot do so pending the Secretary of State's determination
of their applications for asylum. Since there is reason to fear that unless
detained they may abscond, pending the giving of directions, and indeed pending
their removal, the respondents are detained".
The matters which arise in these claims were not relevant nor were they argued
and I do not regard these observations as authority for the general proposition
put forward by Mr. Scannell. In any event, at that time the Secretary of
State's own criteria would have prevented detention unless there was a danger
that the individuals in question would abscond.
23. It seems to me that the detention of the claimants was lawful in that it was permitted by the provisions of the Immigration Act 1971 as amended. The remaining question to be answered, and the one which is of fundamental importance, is whether the Human Rights Act 1998 and the application of Article 5 of the European Convention on Human Rights renders the detention unlawful. Mr. Pannick submitted that that was the only real issue in the cases. I agree.
24. Article 5, so far as material, reads as follows:-
"1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law: ...
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition.
4. Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful.
It is to be noted that Article 5.4 is not dealing with bail. In
Zamir v
United Kingdom
(1983) 40 D.R. 42 at page 59 (Paragraph 109) the Commission
said:-
" ... this right [sc. Under Article 5.4] must be seen as independent of the
possibility of applying to a court for release on bail. In any event, the
Commission observes that the applicant's solicitor asked the Home Office that
the applicant be released in a letter dated 11 October 1978 and, further,
requested that the applicant be admitted to bail in the application for habeas
corpus ...".
And in
Chahal v United Kingdom
(1996) 23 EHRR 413 at page 468
(Paragraph 127) the Court said:-
" ... it is clear that Article 5.4 does not guarantee a right to judicial
review of such breadth as to empower the court, on all aspects of the case
including questions of pure expediency, to substitute its own discretion for
that of the decision-making authority. The review should, however, be wide
enough to bear on those conditions which are essential for the `lawful'
detention of a person according to Article 5.1".
Paragraph 22(1B) of Schedule 2 to the 1971 Act prevents any application for
bail being made by a person detained under Paragraph 16(1) pending examination
unless seven days have elapsed since the date of his arrival in the United
Kingdom. Otherwise, the right to apply for bail is unrestricted and Article
5.4 is met by the right to apply for habeas corpus or judicial review of the
lawfulness of the detention. And once any examination is concluded (which will
normally be on Day 5) bail can in all cases, at least in theory, be applied
for.
25. The question is whether the detention at Oakington is permitted by Article 5.1(f). The Conditions set out in Article 5.1 are designed to ensure that there can be no arbitrary deprivation of liberty and must be given a narrow interpretation: see Winterwerp v Netherlands (1979) 2 EHRR 387 at page 401 (Paragraph 37). In NC v Italy (11 January 2001: case No. 24952/94) the Court stated that it did not suffice that the deprivation of liberty was executed in conformity with national law; it must also be necessary in the circumstances (see Paragraph 41 of the Court's judgment). Tomasi v France (1992) 15 E.H.R.R. 1 concerned the detention of the applicant for four years and seven months before his eventual acquittal on serious charges. A risk of absconding was relied on to justify at least part of the detention. On page 52 at Paragraph 98 the court pointed out that there had been a failure to give reasons why the risk was decisive and to counter any risk by measures such as lodging securities or keeping the applicant under court supervision. The Court in these cases is indicating that measures short of detention must be considered and rejected before detention can be justified even if the conditions in Article 5.1 permitting detention appear to be met. Otherwise, the detention would not be lawful. But these cases do not necessarily help Mr. Scannell since they were not concerned with Article 5.1(f) to which different considerations apply as will become apparent.
26.The European Convention on Human Rights is of course an international document aimed at countries with differing systems of law. Thus it cannot be construed like an English statute even though it is incorporated into domestic law by way of a Schedule to the Human Rights Act 1998. But the words have been carefully chosen and effect must be given to them and to the purpose which dictated their use. Thus it is clear that 5.1(f) is looking at two different stages. The first part is concerned with the control of those who are seeking to enter a state and the second with those whom a state is seeking to remove. Thus the reference to the prevention of an unauthorised entry must in my view cover a person who seeks leave to remain as well as one who is seeking leave to enter. Equally action may include the making of investigations to see whether removal should follow.
27. It is clear from
Chahal v United Kingdom
(supra) that detention with
a view to removal can be justified under Article 5.1(f) even though there is no
danger of absconding. In Paragraphs 112 and 113 the Court said this (at page
464):-
"112. The Court recalls that it is not in dispute that Mr. Chahal has been
detained `with a view to deportation' within the meaning of Article 5.1(f).
Article 5.1(f) does not demand that the detention of a person against whom
action is being taken with a view to deportation be reasonably considered
necessary, for example to prevent his committing an offence of fleeing; in this
respect Article 5.1(f) provides a different level of protection from Article
5.1(c).
Indeed, all that is required under this provision is that `action is being
taken with a view to deportation'. It is therefore immaterial, for the
purposes of Article 5.1(f), whether the underlying decision to expel can be
justified under national or Convention law.
113. The Court recalls, however, that any deprivation of liberty under Article
5.1(f) will be only for as long as deportation proceedings are in progress. If
such proceedings are not prosecuted with due diligence, the detention will
cease to be permissible under Article 5.1(f).
Mr. Chahal had been detained for almost 5 years. Nonetheless, the Court found
that there was no breach of Article 5. In
R(Sezek) v Secretary of State for
the Home Department
(25 May 2001 - [2001] All E.R. (D) 336), the Court of
Appeal adopted the same approach. In Paragraph 13 of his judgment, Peter
Gibson LJ said:-
"From the right to liberty and security is expressly excepted the case of a
person against whom action is being taken with a view to deportation. Article
5.1(f) has been construed strictly, as the jurisprudence relating to that
provision demonstrates ... There is nothing in the Convention nor any
authority to support [counsel's] assertion that Mr. Sezek's detention is
incompatible with Article 5.1(f) if other ways of preventing him absconding are
available".
28.
Amuur v France
(1992) 22 E.H.R.R. 533 concerned the
first
part of Article 5.1(f). The applicants arrived at Orly airport and claimed
asylum. They were held at the airport and a nearby hotel, part of which had
been converted to be used as a holding area, for 20 days and then, following
refusal of leave to enter, removed to Syria, via which they had travelled to
France. The Court unsurprisingly decided that they had been deprived of
liberty and so fell within the protection of Article 5 and that the failure to
allow access to legal or other advice for 15 days made the deprivation of
liberty not compatible with Article 5.1. In Paragraph 43 on page 556 the Court
said this:-
"Holding aliens in the international zone does indeed involve a restriction
upon liberty, but one which is not in every respect comparable to that which
obtains in centres for the detention of aliens pending deportation. Such
confinement, accompanied by suitable safeguards for the persons concerned, is
acceptable only in order to enable States to prevent unlawful immigration while
complying with their international obligations, particularly under the 1951
Geneva Convention ... and the ECHR. States' legitimate concerns to foil the
increasingly frequent attempts to get round immigration restrictions must not
deprive asylum seekers of the protection afforded by those Conventions".
29. It is clear that the detention of a person seeking entry and falling within the first part of Article 5.1(f) must be to prevent that person effecting an unauthorised entry. The language of Article 5.1(f) makes that clear. Thus detention cannot be justified on the ground that it may speed up the process of determination of applications generally and so may assist other applicants. Equally, it is plain that detention cannot be justified on the basis that it might deter others from seeking to enter by making false claims for asylum. Indeed, Mr. Pannick did not seek to suggest that any such policy could be lawful. It would clearly not be lawful. But he does submit that because without a favourable decision on the asylum claim entry cannot be authorised detention is justified. The investigation will prevent an unauthorised entry and so detention as part of the process is permissible. I cannot accept that submission. It flies in the face of any sensible reading of Article 5.1(f) and is in my view incompatible with the approach of the court in Amuur in the passage cited in Paragraph 28 above. Once it is accepted that an applicant has made a proper application for asylum and there is no risk that he will abscond or otherwise misbehave, it is impossible to see how it could reasonably be said that he needs to be detained to prevent his effecting an unauthorised entry. He is doing all that he should to ensure that he can make an authorised entry. If his application is refused, further consideration may be given to whether he should be detained under the second part of Article 5.1(f), but the fact that all these claimants were then granted temporary admission underlines the reality that there was considered to be no danger of any of them effecting an unauthorised entry.
30. Mr. Pannick then submits that they are properly to be regarded as covered by the second part of Article 5.1(f) because they will be removed unless their asylum claims are allowed. A person who arrives and seeks leave to enter cannot properly be regarded as someone `against whom action is being taken with a view to deportation' (in this context, deportation merely means removal). Even if action is extended to include investigation, the investigation is to see whether he should be permitted to enter. In any event, it is not compatible with asylum seekers' rights under the Refugee Convention to regard the investigation of claims for asylum in all cases as being action with a view to deportation. The question is not whether they should be removed but whether they should be permitted to enter. Thus there can be no doubt that Dr. Saadi at least did not fall within either part of Article 5.1(f).
31. It is suggested that illegal entrants are in a different position. Whether or not they are depends on the facts of a particular case. Thus where an illegal entrant is caught and removal is to be effected, a claim for asylum to stop such removal cannot prevent the second part of Article 5.1(f) applying. Equally the same will apply where removal is ordered and that triggers an asylum claim. Chahal was such a case. But it has been recognised that refugees may well be compelled to obtain entry to a safe country by illegal means and such illegal entry should not necessarily be held against them. If a person enters by unlawful means, for example hidden in a lorry, but does so with a view to claiming asylum, and claims asylum on arrival or within such time after arrival as is reasonable, he is not dealt with on the basis that he is to be removed but on the basis that he is applying to enter. That reflects the factual situation in the cases of Messrs Maged, Osman and Mohammed. It was never suggested to them that they were to be removed or that action was being taken with a view to their removal. The action being taken was with a view to determining whether they should be allowed to remain and so to enter. If an illegal entrant only claims asylum when discovered, the situation may be different and the approach of the Court of Appeal in Secretary of State for the Home Department v Khan (supra) may justify detention under the second part of Article 5.1(f).
32. It is wholly artificial to regard the detention as within the second part of Article 5.1(f). It is not. It is therefore not possible to justify the detention since it does not fall within Article 5.1(f) and is accordingly unlawful.
33. That conclusion means that it becomes unnecessary to consider whether the detention was arbitrary so as to render it not lawful and so not within Article 5.1(f). However, the matter has been fully argued and, in case these cases go further, I should deal with the point. If the detention is covered by the second part of Article 5.1(f), there will be no question of arbitrariness. So much is clear from Chahal and Sezek . Action with a view to removal justifies detention and the only situation in which such detention will be unlawful is if it is for an unreasonable time or in unreasonable circumstances. Neither consideration applies to these claims.
34. Mr. Pannick submitted that the same principle must apply to the first part of Article 5.1(f). Once it is established that the detention is covered by either part of Article 5.1(f), no more need be established to show that it is lawful. In order to justify detention under the first part it is necessary to show that it is to prevent the detainee effecting an unlawful entry. If that is the purpose, it is submitted that it is unnecessary to determine whether other means short of detention could achieve that purpose. Under the second part, nothing is to be achieved by the detention; it is justified by action being taken with a view to removal. But under the first part the detention is designed to prevent the detainee effecting an unauthorised entry. This is much closer to Article 5.1(c) and so the approach set out in Tomas i and Winterwerp would seem to be more appropriate. When detention is used to ensure that an individual does or does not do something, it is surely required that it be established that that result cannot reasonably be achieved by means other than detention. Otherwise, the detention could properly be said to be arbitrary and thus to contravene the fundamental objective of Article 5 and the right to liberty.
35. Thus far I have assumed that
Chahal
will apply to the detention if
the second part of Article 5.1(f) is applicable. But I am not persuaded that
Chahal
does apply. It is in my judgment necessary to identify the
reason for the detention. It is clear that it is in order that there should be
speedy decision-making of a substantial number of applications: that indeed is
the evidence from Mr. Martin which is before me. The minister said in a news
release announcing Oakington's opening:-
"Speeding up the asylum process is a major objective in our reform of the
asylum system. People who come to the United Kingdom may be fleeing terrible
persecution and it is important that their claims are dealt with swiftly, so
that rather than being stuck in an administrative limbo they are able to get on
with rebuilding their lives.
Oakington will enable us to deal quickly with the straightforward asylum
claims. It is in everyone's interest that both genuine and unfounded asylum
seekers are quickly identified. Genuine asylum seekers can be given the
support they need to integrate with society. And those with unfounded claims
can be sent home quickly thereby sending a strong signal to others thinking of
trying to exploit our asylum system".
I certainly (and I suspect most people) would not quarrel with the sentiments
expressed, although it is perhaps somewhat ironic that none of the claimants
can at present be returned to Northern Iraq since there is no means of getting
them there except via Baghdad and, for obvious reasons, they cannot be returned
there. But, desirable though it is that there should be speedy decisions, that
cannot necessarily justify detention. Even assuming that either part of
Article 5.1(f) applies the reality is that the claimants were not detained
because of that but because of the belief that speedy resolution of their
applications could not otherwise be achieved.
36. Accordingly, as it seems to me, it is necessary to show that detention was indeed required to achieve that purpose. That is because it is clear that none of the claimants would have been detained but for the fact that they qualified for the Oakington fast track procedure and had to be detained to enable that procedure to be carried out. They were not detained because they might otherwise effect an unauthorised entry or because action was being taken with a view to their removal from the United Kingdom. While that may be a justification for a finding that Article 5.1(f) apples (and, for the purposes of this part of my judgment, I am assuming that it is) it was not the reason for or the immediate cause of the detention. That being so, it is in my view, consistently with the right to liberty enshrined in Article 5, necessary to decide whether detention was indeed proportionate. If it was not, it was arbitrary and so not lawful.
37. I recognise the care which must be exercised before I could consider it
proper to intervene and the margin of discretion to be allowed to the Secretary
of State as the decision-maker. The principles have been helpfully set out in
a very recent decision of the Court of Appeal in
Samaroo v Secretary of
State for the Home Department
(17 July 2001: Case No. C/2801/0030 and
0052). At Paragraph 35, after considering relevant authorities, in particular
R (Mahmood) v Secretary of State for the Home Department
[2001] 1 WLR 840 and
R (Daly) v Secretary of State for the Home Department
[2001] 2 WLR 1622, Dyson LJ said this:-
"Accordingly, the function of the court in a case as this is to decide whether
the Secretary of State has struck the balance fairly between the conflicting
interests of Mr. Samaroo's right to respect for his family on the one hand and
the prevention of crime and disorder on the other. In reaching its decision,
the court must recognise and allow to the Secretary of State a discretionary
area of judgment. In considering the particular factors to which the court
will have regard in deciding to what extent (if at all) to defer to the opinion
of the Secretary of State, I have been assisted by the discussion at Paragraph
3.26 of Human Rights Law and Practice (1999), of which Lord Lester of Herne
Hill Q.C. and David Pannick Q.C. are the general editors. They identify the
following factors: (a) The nature of the Convention right: is the right
absolute or (as in the case of Article 8) does it require a balance to be
struck? The court is less likely to defer to the opinion of the decision-maker
in the former case than the latter; (b) The extent to which the issues require
consideration of social, economic or political factors. The court will usually
accord consideration deference in such cases because it is not expert in the
realm of policy-making, nor should it be because it is not democratically
elected or accountable; (c) The extent to which the court has special
expertise, for example in relation to criminal matters; (d) Where the rights
claimed are of especial importance, a "high degree of constitutional
protection" will be appropriate. The European Court of Human Rights has
recognised as being of especial importance rights to freedom of expression and
access to the courts".
It is necessary to seek a fair balance between the human rights of the
individual and the interests of the community at large. Article 5 defines the
circumstances in which deprivation of liberty may be permitted with precision.
In some cases, things may have happened (e.g. a conviction by a competent court
or action being taken with a view to removal) which justify detention. In such
cases, it will be easier to establish that the detention was lawful. In
others, detention is to achieve or to prevent something. In such cases, there
is a need to show that detention was reasonably required to achieve or to
prevent that thing.
38. I entirely accept that the presence of the applicant, his attendance at interview and his availability both to consult his representative and for any further questioning which may be considered necessary is vital. The system will not otherwise operate successfully. I accept, too, that interviews may frequently for different reasons need to be rescheduled, sometimes at short notice, and so presence at all material times is required. Mr. Martin says that only by detention can that be achieved.
39. The 1999 Act has conferred the powers (now in sub-paragraphs (2A) to (2E) of Paragraph 21 of Schedule 2 to the 1971 Act) to impose conditions on temporary admission. Conditions are a feature of bail in criminal cases and one such condition may be a condition of residence. So there can be a condition of residence at a true reception centre (rather than the euphemistic and somewhat misleading description of Oakington). There can be a requirement to attend at interview as and when required and a condition that the applicant is available at particular times (for example, during normal working hours). It can be made clear that a failure to co-operate or to abide by the requirements of availability will be likely to result in the rejection of the claim under Paragraph 340 of the Immigration Rules. It will be difficult for an appellant in such circumstances to persuade an adjudicator or the I.A.T. that his claim is well-founded if he failed without excuse (for it would be difficult to establish any excuse) to co-operate.
40. It is said that if there were no locks applicants would leave (not because they were going to abscond; they would not be at Oakington if there was a concern that they might abscond). They might then not be available: perhaps they would miss the bus or it would be running late. Perhaps their watches might stop. Most applicants would have no resources; they would need none since board and lodging would be provided. It seems to me that in those circumstances they would be unlikely to leave - there would be no incentive to do so. I do not of course suggest that it would be right to require a 24 hour presence: that would be akin to house arrest and might well be regarded as detention. But that is not necessary to achieve the objective of the system.
41. Mr. Scannell has suggested that in reality detention was decided on because
of concerns by those who lived near Oakington that asylum seekers would cause
problems if allowed to leave the centre. The local planning authority was
consulted in accordance with the system in operation where development by
government which does not require formal planning permission is concerned.
This culminated in a proposed condition in the following terms:-
"No detainee shall normally be allowed to leave the centre without the
provision of transport or an escort although persons granted temporary
admission to the United Kingdom from the Centre will normally be offered
transport to connect with rail or bus services but may make their own
arrangements {Reason: to minimise the risk of prejudicing public order and to
allay public concern about the possible effect of significant numbers of
strangers without support within the local community]".
This, it appears, was accepted by the Home Office. It is said that it appears
to be inconsistent with the statement made in October 1999, when the Oakington
proposal was being publicised, that:-
"In certain circumstances applicants would be able, with prior approval, to
leave without escort for specific purposes and periods".
Mr. Martin explains that that was intended to deal with such matters as a need
for medical attention which could not be provided at the Centre. He draws
attention to an answer to a question in Parliament on 3 April 2000 which makes
that point. He categorically denies that a concern that local public opinion
would not accept anything other then detention played any part in the decision
that detention was needed. In the light of that, I do not think it would be
right for me to accept that Mr. Scannell's suggestion is correct. Nor should I
rely on such public concerns as a reason for finding that detention was
proportionate. I should say that both counsel accepted that in considering
proportionality I was entitled to rely on matters which supported the Home
Office view even if not relied on by them, but I should be very slow to do
so.
42. I recognise that, as Mr Martin has said, ministers have considered whether
a use of the power to impose conditions would have achieved the desired result
and have decided that it would not. But I have also had put before me extracts
from Hansard. In a debate on what is now Section 4 of the 1999 Act on 2
November 1999, Lord Williams of Mostyn, the government spokesman, said this
(Column 736):-
"I turn now to the second element of the amendment; it is not about the use of
detention or the regime proposed at Oakington. The point of the amendment is
to give greater flexibility in the use of temporary admission. We would then
be able to develop reception facilities at which those given temporary
admission were required to reside but were free to come and go during the day
if they wished ... It is not 24-hour detention; it is an intermediate stage
...
We want to be able to ensure that applicants remain at the accommodation
overnight - again, I say this without any doubt that it is a proper thing to
say - and to be able to say to them, `we require you to be present at this
designated accommodation at certain times because that is when your interviews
will occur'. There is nothing wrong with that. In fact, it is a sensible way
to behave. One must apply proportionality in more than one way".
Why should that not be effective to achieve what Oakington sets out to achieve?
Surely measures short of detention should be tried first and detention should
be regarded as the last resort.
43. I have hesitated long before concluding that the arguments put forward by Mr. Pannick based on Mr. Martin's evidence do not persuade me that my view is wrong. I am satisfied that detention is not proportionate. I have, of course, considered all the material put before me and I do not find it necessary to extend this judgment by going into greater detail. Essentially, it boils down to a concern that applicants would leave the centre if there were no locks and therefore their presence for interview or questioning could not be guaranteed. Those concerns seem to me to be based on assumption and speculation rather than on substance.
44. As I hope will be clear, I am not saying that to detain those who come to this country seeking asylum is necessarily unlawful. It will be very easy to justify detention of illegal entrants, particularly those who have shown that they have single-mindedly set out to get here. Many will have spent what for them and those who supported them were large sums of money to be assisted by agents, who are in reality in the main criminals preying on those who, whether for economic reasons or because they face at worst persecution and at best probably discrimination and certainly a miserable existence, wish to make a life for themselves in this country. Their desire to settle here at all costs may be ample justification for forming the view that if not detained they will effect an unauthorised entry, particularly, of course, if they are not fleeing persecution and so are not likely to succeed in establishing that they are refugees. Equally, I am not saying that no-one detained at Oakington is lawfully detained. In the majority of cases, once the decision is made (often to refuse leave to enter) temporary admission is granted. But it is envisaged that in some cases detention will continue and in those, there would have been reason to detain beyond the need for a speedy decision on their claim for asylum.
45.What I have decided is that to be lawful detention must be justified for the individual under Article 5.1(f). Thus the reasons for and the purpose behind a person's detention are all-important. In these cases, the claimants have not been detained because they might otherwise effect an unauthorised entry or because action is being taken to remove them; it is because it is considered necessary to achieve a speedy decision in the interests of the general administration in relation to asylum claims. Indeed, the grant of temporary admission on refusal of the claims at a time when the likelihood of absconding is, one would have thought, greater shows that concerns that an unauthorised entry might otherwise be effected cannot have been the reason for detention. The reason for the detention of each individual is what is important. In these cases, it is to enable there to be speedy determination of their applications. It is that that renders the detentions in these cases unlawful. The same may well apply to many, perhaps most, Oakington cases. But that is because and only because the Home Office has chosen to make it clear that the sole reason why most applicants are detained at Oakington is because of the advantages it provides in ensuring speedy decisions. Otherwise, the applicants would be granted temporary admission and would not be detained.
46. For the reasons I have given, I am satisfied that the detention of all the
claimants was not lawful. I will hear counsel on the appropriate relief to be
granted.
