The Secretary of State for the Home Department v Lucas, R (On the Application Of), Court of Appeal - Civil Division, November 16, 2018, [2018] EWCA Civ 2541

Resolution Date:November 16, 2018
Issuing Organization:Civil Division
Actores:The Secretary of State for the Home Department v Lucas, R (On the Application Of)
 
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Neutral Citation Number: [2018] EWCA Civ 2541

Case Nos: C4/2016/3285, C4/2016/3286

& C4/2016/3848

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

THE HON MR JUSTICE COLLINS

[2016] EWHC 1960 (Admin)

AND THE HON MR JUSTICE JAY

CO Ref CO/4399/2016

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16/11/18

Before :

LORD JUSTICE HAMBLEN

LORD JUSTICE HICKINBOTTOM

and

LORD JUSTICE COULSON

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Between :

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Sonali Naik QC and Greg Ó Ceallaigh (instructed by Duncan Lewis) for

Chibong Lucas and Richard Aboro

Sarabjit Singh QC (instructed by Government Legal Department) for the Secretary of State in the case of Chibong Lucas

Julie Anderson (instructed by Government Legal Department) for the Secretary of State in the case of Richard Aboro

Hearing date: 9 October 2018

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Lord Justice Hickinbottom:

Introduction

  1. These appeals concern the lawfulness of the re-detention of foreign criminals, who are the subject of a deportation order and on immigration bail, for the purposes of their attending an interview with Nigerian officials at a detention centre to secure emergency travel documentation and thus facilitate their removal.

  2. In each of the appeals, the individual party (Mr Lucas and Mr Aboro) is a Nigerian national who is the subject of a deportation order as a foreign criminal; and, as such, has at all material times been liable to be detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (``the 1971 Act''). Each was in fact detained, but released on bail at least initially granted by the First-tier Tribunal (``FtT''). Each substantively complied with all conditions imposed upon him. However, each was eventually arrested and re-detained by the Secretary of State so that he could be interviewed at a detention centre by the Nigerian Immigration Service (``NIS''), for the purposes of obtaining an emergency travel document (``ETD'') to facilitate his removal to Nigeria. After some time, each was again released. They each now claim that the period of detention following his arrest for the purposes of an NIS interview until his release was unlawful.

  3. In the case of Mr Lucas, on 27 July 2016 Collins J held that the period of detention (three days) was unlawful because, at the time of his arrest, Mr Lucas was still subject to the immigration bail ordered by the FtT and the Secretary of State had no power to vary or otherwise interfere with that bail or its terms as she purported to do. However, Collins J found that, in the circumstances, had Mr Lucas been produced to the FtT on a bail application as he should have been, then no FtT judge would have granted him bail. He therefore awarded Mr Lucas only nominal damages. He granted permission to appeal to both parties.

  4. In the case of Mr Aboro, he was arrested for the purposes of an NIS interview on 27 July 2016. On 26 September 2016 (the day before it was proposed to remove him), Jay J refused his application for permission to proceed with the claim and all other claims, declaring them to be totally without merit and that the Secretary of State was at liberty to remove him the following day. In the event, because the expected ETD from the Nigerian authorities did not materialise, Mr Aboro was not removed then; and he was eventually granted bail by the FtT on 27 October 2016.

  5. By my Order of 17 August 2017, I refused all his grounds of appeal save for one, namely that Mr Aboro's period of detention from 27 July 2016 was unlawful because he was still on immigration bail ordered by the FtT and the Secretary of State had no power to vary or otherwise interfere with that bail or its terms as she purported to do, i.e. in substance, the same ground relied upon by Mr Lucas. In respect of that ground, I adjourned it into open court on a rolled-up basis to be heard with Mr Lucas's appeal.

  6. Thus, the two matters are before us. For the sake of completeness I should say that there are other grounds of appeal upon which the parties rely or seek to rely, notably Mr Lucas and Mr Aboro submit that their detention was unlawful in any event because, contrary to the well-known principles in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 (``Hardial Singh''), it was for the purpose of being included in a documentation interview scheme which required the applicants to be detained.

  7. Before us, Sonali Naik QC and Greg Ó Ceallaigh of Counsel appeared for Mr Lucas and Mr Aboro, and Sarabjit Singh QC (in respect of Mr Lucas's appeal) and Julie Anderson of Counsel (in respect of Mr Aboro's appeal) for the Secretary of State.

    The Statutory Provisions

  8. References in this judgment to ``Schedule 2'' and ``Schedule 3'' are to Schedule 2 and Schedule 3 of the 1971 Act respectively, as they stood at all material times for the purposes of these appeals, i.e. before 15 January 2018, when they were extensively amended by Schedule 10(2) to the Immigration Act 2016.

  9. Paragraph 2 of Schedule 3 provides for ``Detention or control pending deportation''. At all material times, paragraph 2(3) read as follows:

    ``Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom...''.

    ``Pending'' in this context means simply ``until'': the removal or departure does not have to be pending, still less impending or imminent (R (Khadir v Secretary of State for the Home Department [2005] UKHL 39; [2006] 1 AC 207 at [32] per Lord Brown of Eaton-under-Heywood with whom the rest of the House agreed: see also Baroness Hale of Richmond at [4] to the same effect).

  10. Paragraph 4 and 4A provided (so far as material to these appeals) that:

    ``(4) In relation to detention under sub-paragraph... (3) above, [paragraph] 17... of Schedule 2 to this Act shall apply as [it applies] in relation to detention under paragraph 16 that Schedule;...

    (4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph... (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.''

    These paragraphs therefore extended the provisions of paragraphs 17 and 22-25 of Schedule 2 (which otherwise only concerned detention of persons falling into categories set out in paragraph 16, into which neither Mr Lucas nor Mr Aboro fall) to those liable to be detained under paragraph 2(3) of Schedule 3 (into which category they do fall).

  11. Paragraphs 17, 22 and 24 of Schedule 2 (at the material time, so far as material to these appeals and, in the light of paragraph 2(4) and (4A) of Schedule 3, replacing references to ``paragraph 16'' with ``paragraph 2(3) of Schedule 3''), provided as follows:

    ``17(1) A person liable to be detained under [paragraph 2(3) of Schedule 3] above may be arrested without warrant by a constable or by an immigration officer...''.

    ``22(1) The following namely... a person detained under [paragraph 2(3) of Schedule 3]... may be released on bail in accordance with this paragraph.

    (1A) An immigration officer not below the rank of chief immigration officer or the [FtT] may release a person so detained on his entering into a recognizance... conditioned for his appearance before an immigration officer at a time and place named in the recognizance or bail bond or at such other time and place as may in the meantime be notified to him in writing by an immigration officer.

    (1B) ...

    (2) The conditions of a recognizance... taken under this paragraph may include conditions appearing to the immigration officer or the [FtT] to be likely to result in the appearance of the person bailed at the required time and place; and any recognizance shall be with or without sureties as the officer or the [FtT] may determine.''

    ``24(1) An immigration officer or constable may arrest without warrant a person who has been released by virtue of paragraph 22 above--

    (a) if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance... that he will appear at the time and place required or to break any other condition of it, or has reasonable ground to suspect that that person is breaking or has broken any such other condition;...

    (b) ...

    (2) A person arrested under this paragraph--

    (a) if not required by a condition on which he was released to appear before an immigration officer within twenty-four hours after the time of his arrest, shall as soon as practicable be brought before the [FtT] or, if that is not practicable within those twenty-four hours, before... a justice of the peace; and

    (b) if required by such a condition to appear within those twenty-four hours before an immigration officer, shall be brought before that officer.

    (3) Where a person is brought before the [FtT or] a justice of the peace... by virtue of sub-paragraph (2)(a), the Tribunal [or] justice of the peace --

    (a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either--

    (i) direct that he be detained under the authority of the person by whom he was arrested; or

    (ii) release him, on his original recognizance or on a new recognizance, with or without sureties...; and

    (b) if not of that opinion, shall release him on his original recognizance...''.

  12. For the sake of completeness, I should refer to two other paragraphs of the schedules to the 1971 Act, which make a brief appearance in these appeals.

    i) Paragraph 2(5) and (6) of Schedule 3 provides:

    ``(5) A person to whom this sub-paragraph applies 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 the Secretary of State.

    (6)...

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