E & Ors, R (on the application of) v Secretary of State for the Home Department

Where related immigration claims arise from identical facts, the Secretary of State must consider a decision affecting one family member when exercising discretion over the removal of the others. Failure to consider that decision may invalidate the removal decision.

Immigration detention must comply with statute, published policy and Article 5 ECHR. Detention pending removal requires a realistic prospect of removal within a reasonable period, and reasonable alternatives must be considered. Removal arrangements must also allow a reasonable opportunity to obtain legal advice where no genuine urgency exists.

The court may require reasonable steps to facilitate return after an unlawful removal, but should not order the Government knowingly to facilitate departure in breach of another country’s domestic law.

A family claimed asylum after entering the United Kingdom as visitors. The son, an adult with physical and mental disabilities, made a separate claim. The Immigration Judge dismissed all appeals. Owen J refused reconsideration for the parents and daughter, but Mitting J ordered reconsideration of the son’s appeal.

The family was nevertheless detained and removed together before the son’s reconsideration. The Secretary of State conceded that the son’s detention and removal were unlawful. The remaining claimants challenged their own detention and removal, sought interim damages, and sought orders requiring steps to secure their return.

The central issues were whether the son’s pending reconsideration was a relevant consideration in removing the other family members, whether their detention was lawful, and whether the court could require diplomatic steps involving a neighbouring country.

1. Removal. The Secretary of State had a discretion whether to remove the parents and daughter after their appeal rights were exhausted. That discretion had to be exercised according to ordinary public law principles and with regard to all relevant considerations. Mitting J’s reconsideration order was relevant because the son and the other family members relied on identical facts, the family lived as a unit, and removal of the others could separate the son from necessary family support. Failure to consider it rendered their removal unlawful.
2. Detention. Detention had to comply with statutory powers and the published detention policy. It was permissible only where there was a realistic prospect of removal within a reasonable period. The policy required detention to be used sparingly, for the shortest necessary period, and only after reasonable alternatives had been considered. The risk of separating the family and the son’s dependence on his parents were material considerations. Detention on the stated basis was therefore unlawful and breached Article 5 ECHR.
3. Access to legal advice. The detention and removal timetable, beginning at the start of a bank-holiday weekend and allowing no working day, denied the family a reasonable opportunity to obtain legal advice. That rendered the detention unlawful even without malign intent or an improper purpose. The principles stated in R (on the application of) Karas v Secretary of State for the Home Department [2006] EWHC 747 (Admin) and R (Collaku) v Secretary of State for the Home Department [2005] EWHC 2855 (Admin) were applied.
4. Relief. Interim damages of £4,000 were awarded to each of the parents and daughter. The Secretary of State was required to take all reasonable steps to facilitate the family’s return, but the court declined to order a specific approach to foreign authorities which would contemplate unlawful departure from the country of origin.

The judgment describes earlier procedural decisions in the High Court. Owen J refused reconsideration for the parents and daughter on 22 March 2006. Mitting J ordered reconsideration of the son’s case on 23 March 2006. The present proceedings concerned the lawfulness of the subsequent removal and detention and applications for relief.