FP, R (on the application of) v Secretary of State for the Home Department

Removal directions must allow a person a real opportunity to seek judicial review. Where the Home Office’s operational instructions require removal to be deferred after a judicial review threat, officials must follow that policy. A failure to do so may create the conditions for an urgent injunction and can attract serious criticism and indemnity costs.

Where officials are informed that an injunction may prevent removal, they must take reasonable practical steps to verify the order, including contacting the court or the solicitor. Negligence and serious administrative failure do not automatically amount to contempt. Punishment requires deliberate breach or, if legally sufficient, recklessness of the requisite gravity.

The claimant, an asylum seeker from Turkey, was detained with her children on Sunday 2 July 2006 for removal to Germany on the following Wednesday. Her solicitor threatened judicial review and sought an injunction after the Home Office refused to defer removal. A duty judge granted the injunction, but defective communication systems and failures by officials to verify the order resulted in the family being removed in breach of it.

The claimant sought judicial review and the court also considered whether any individual should be punished for contempt. The issues included compliance with Home Office removal guidance, the adequacy of the out-of-hours arrangements, and the consequences of the breach.

1. The Home Office had seriously failed to follow its own operational guidance. The guidance required removal normally to be deferred for three working days after a judicial review threat, and required removal to be cancelled once proceedings had been initiated. Chapter 44 of the manual also required five working days in Dublin Convention cases after notification of the intention to remove. Detaining the claimant on a Sunday for removal early on the Wednesday did not provide that period. Once the solicitor threatened judicial review on the Tuesday, removal ought to have been deferred.

2. The Home Office’s systems were defective. The solicitor was not given an effective out-of-hours contact, the relevant unit was unstaffed, and the injunction fax was sent to an office where it could not be acted upon. When informed that a court order might exist, the responsible officer failed to take reasonable steps to verify it. The Royal Courts of Justice security office or the solicitor’s out-of-hours number could have been contacted.

3. The removal in breach of the injunction was a serious matter. The court nevertheless found that the relevant officer’s conduct, although negligent and displaying a signal lack of competence, was not shown to be deliberate or sufficiently reckless to justify punishment for contempt. The shortcomings of another official contributed to the need for the urgent application but did not cause the breach.

4. Permission to apply for judicial review was granted on the delay ground, with a rolled-up hearing directed on the lawfulness of the detention. The Home Office was ordered to pay the claimant’s indemnity costs relating to obtaining the injunction and the contempt proceedings. Costs concerning the judicial review were reserved for the ordinary determination.