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

Where a person has been unlawfully removed, the court may order the Secretary of State to use best endeavours to secure return to the United Kingdom. The discretion must be exercised judicially by assessing the gravity of the unlawful conduct, its consequences for the claimant and any relevant public-interest considerations. A declared 72-hour removal-notice policy remains applicable when fresh removal directions are issued. Disruptive behaviour does not, by itself, remove that obligation. Exceptions based on unpublished operational guidance require a proper evidential foundation and must not be used to defeat access to legal advice or judicial review. The consequences of removal abroad, including a materially increased risk of human-rights violations, may justify mandatory relief without prejudging the merits of any fresh protection claim.

The Secretary of State conceded that the claimant, a homosexual Ugandan national, had been unlawfully removed to Uganda on 18 September 2008. The claimant sought a declaration and a mandatory order requiring the Secretary of State to use best endeavours to secure his return.

The removal followed a decision to withhold ordinary removal notice and prevent contact with lawyers. The court considered the operation of the 72-hour notice policy, the unpublished Detention Service Order 7/2008, the circumstances of the removal, the claimant’s treatment in Uganda and the potential merits of a fresh human-rights claim. The central issue was whether justice required mandatory relief.

1. The court granted a declaration that the claimant’s removal was unlawful and ordered the Secretary of State to use her best endeavours to arrange or facilitate his return from Uganda.

2. The discretion to grant mandatory relief had to be exercised judicially. Relevant considerations included the gravity and character of the unlawful conduct, its consequences for the claimant and any public-interest considerations.

3. The decision to remove the claimant without a fresh 72-hour notice period was manifestly unlawful. Fresh removal directions triggered the notice requirement. Disruptive behaviour did not of itself alter that obligation, which existed to allow access to legal advice and the commencement of judicial review proceedings.

4. The exception in Detention Service Order 7/2008 required a history of non-compliance and strong evidence that advance notification would create an unmanageable risk to good order and discipline. Those conditions were not established. Publicity, media coverage and anticipated protest by supporters were immaterial to the obligations owed to the claimant. The policy had also not been adequately published, creating a risk that officials and relevant agencies would not know its terms.

5. The claimant had been deliberately misled, denied contact with his legal representatives and physically restrained during removal. His subsequent detention and mistreatment in Uganda increased the risk that his human rights would be breached because of his homosexuality. The court did not prejudge the fresh claim, but found a real possibility that a judge might find him at risk if returned.

6. Those matters, taken together, made return the effective relief required by justice. Damages were left over. Indemnity costs were refused because the late concession, although criticised, did not alone amount to the exceptional litigation conduct required; costs were to be assessed on the standard basis.

The judgment was a first-instance decision in the Administrative Court. The judgment records earlier immigration and asylum proceedings, including the dismissal of an application for reconsideration by Mrs Justice Dobbs on 30 June 2008, but no appeal to this court.