Onos v The Secretary of State for the Home Department

A removal decision does not carry an in-country right of appeal where earlier further submissions have been rejected as not amounting to a fresh claim and there is no nexus between those submissions and the later removal decision. The Secretary of State may generally decide to remove a person with no right to remain where no application or appeal is outstanding. Section 55 requires the best interests of children to be considered, but does not prevent their removal with a parent where remaining together in the country of return is found to serve those interests.

Published detention policies may significantly fetter the statutory power to detain families. Detention in breach of such a policy is unlawful from the outset. Damages may nevertheless be limited to compensation for detention exceeding the period that would probably have occurred had the policy been followed.

The claimant, a Nigerian national, challenged decisions to remove her and her three children to Nigeria under section 10 of the Immigration and Asylum Act 1999 and to detain them pending removal.

She argued that she had an in-country right of appeal, that insufficient regard had been given to the children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009, and that she qualified for indefinite leave to remain through long residence. She also alleged that her detention breached the Secretary of State’s published family returns policies.

The central issues were whether removal was unlawful, whether the detention policy had been breached, and what remedies followed from any breach.

1. Removal and appeal. The claim that removal was barred by an in-country appeal failed. The 2012 further submissions had been rejected as not amounting to a fresh claim under paragraph 353 of the Immigration Rules, that decision had not been challenged, and there was no nexus between those submissions and the 2015 removal decision. The court could not reopen the unchallenged decision.
2. Children’s welfare. Where no application or appeal is outstanding, the Secretary of State is generally free to decide to remove a person with no right to remain. Section 55 may affect the manner of removal. In any event, the Secretary of State was entitled to proceed on the basis that the claimant would be removed and to conclude that the children’s best interests lay in remaining with their mother and returning with her to Nigeria.
3. Detention policy. Chapters 45 and 60 of the Enforcement Instructions and Guidance were intended to operate together. Removal directions had to comply with the prescribed notice periods before a family could be detained under Chapter 45. The circumstances in which detention could exceed 72 hours were exhaustively stated in paragraph 5.2, subject to departure for good reason. The Secretary of State breached the policy by serving late removal directions and by obtaining retrospective ministerial authority when the paragraph 5.2 criteria were not met.
4. Lawfulness and damages. The breach made the detention unlawful from the outset. Later ministerial authority did not cure it. Applying the approach in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, the claimant would have been detained lawfully for 72 hours had the policy been followed, but would probably not have been detained longer. She was therefore entitled to nominal damages for the first 72 hours and compensatory damages for the excess. Aggravated damages and additional damages under article 5 of the ECHR were refused.
5. The claimant was entitled to a declaration that the entire detention was unlawful. The assessment of compensatory damages was to be addressed following written submissions and, if necessary, transferred to the Queen’s Bench Division.