Neutral Citation Number: [2014] EWHC 1062 (Admin)

Case No: CO/9830/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 9th April 2014

Before :

MR JUSTICE DINGEMANS
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Between :

Sazzad Shahriar Swaran	Claimant
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Secretary of State for the Home Department	Defendant

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Raphael Jesurum (instructed by Duncan Lewis Solicitors) for the Claimant
David Blundell (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: Wednesday 2nd April 2014
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Judgment As Approved by the Court
Mr Justice Dingemans :

Introduction

1.	This is a claim for damages for false imprisonment made by the Claimant, Sazzad Shahriar Swaran against the Secretary of State for the Home Department. This case raises issues about the circumstances in which claims for damages should be bought in the Administrative Court, and a point about the proper interpretation of paragraph 16(1A) of Schedule 2 of the Immigration Act 1971.
2.	The Claimant claims that he was unlawfully detained in the period from 22nd September 2011 until 14th May 2012. The Defendant contends that the detention was lawful and that the Claimant was detained under statutory powers: to examine the circumstances in which he had obtained leave and to decide whether that previous leave should be cancelled; and pending the Claimant’s proposed return to Bangladesh.

Entry into the UK and the return to Bangladesh
3.	The Claimant is a national of Bangladesh and was born on the 28th July 1984. The Claimant had entered the United Kingdom as a Tier 4 student with a visa valid from 20th July 2009 until the 20th November 2011. The evidence showed that he studied at the London School of Science and Technology from 2009 until early 2010 and then began a course in Administration of Business Management at the Raya Academy in January 2011.

4.	In about August 2010 the Claimant, who was a dancer, met a consultant eye surgeon. They formed a relationship and started to live together in about September 2010. They entered a civil partnership on the 29th June 2011. Paperwork was completed to register the Claimant as the civil partner of the consultant surgeon and he was granted leave as a result of the civil partnership until 15th July 2013. This new leave contained none of the usual limitations on leave granted to Tier 4 students.

5.	In August 2011 the Claimant returned to Bangladesh after his sister had given birth and suffered complications. At some stage the Claimant’s civil partner had followed him to Bangladesh. In circumstances which appear to be controversial between the Claimant and his civil partner, the Claimant’s civil partner terminated the relationship between them and told the Claimant that he was withdrawing his sponsorship of the Claimant.
6.	On the 6th September 2011 the Claimant’s civil partner faxed the Home Office in Croydon about the Claimant. He said “I am regretfully writing this note to withdraw my sponsorship as the civil partner of the above Bangladesh national.” The Claimant’s civil partner made a number of allegations against the Claimant to the effect that the Claimant: had not attended the Raya Academy; had not paid fees; and had worked illegal hours. It was also alleged that: the civil partnership had proved not to be a genuine one; the Claimant had a biometric card which he might misuse; the Claimant had had a heterosexual relationship with a person which had been hidden from the Claimant’s civil partner; and the Claimant’s civil partner was now concerned about his own safety in Bangladesh where he was on a cultural trip organised by the Indian and British High Commission. The Claimant’s civil partner also said that the Claimant had exploited the Claimant’s civil partner physically, mentally and  financially, and he asked that the Claimant’s status be revoked. The Claimant’s civil partner noted that he was withdrawing his sponsorship of the Claimant and that the Claimant was still in the probationary period. I should state, out of fairness to the Claimant, that the Claimant has given evidence before Immigration Judges denying the allegations made by his civil partner.

The Claimant’s return to the UK
7.	The Claimant arrived back in the United Kingdom at Heathrow airport on the 22nd September 2011. The case record sheet shows that it was on that day that the information from the fax sent by the Claimant’s civil partner was entered on to the relevant database. This database was the General Case Information Database (“GCID”). It was specifically noted “marriage partner breakdown notified - this information must not be disclosed to the foreign spouse partner or used to support curtailment or other action without the UK settled spouses partners written agreement”.

8.	On arrival at Heathrow the Claimant joined the student queue and presented his passport. The passport contained the Claimant’s Tier 4 entry clearance visa expiring on the 20th November 2011 but didn’t contain the details of his civil partnership. According to paragraph 4 of the witness statement of Ghazalla Khan of the Heathrow Border Casework Unit at Terminal 3 when the Claimant was prompted for dates regarding his studies he faltered, and then produced the identity card for foreign nationals (“ICFN”) confirming leave to enter from 15th July 2011 to 15th July 2013 as a spouse.

9.	The Claimant apparently stated that he was in a civil partnership but was unable to provide the date on which the civil partnership had taken place. A check of the Home Office records was then carried out which revealed the allegations about the Claimant made by his civil partner and sponsor. In the light of this information the Claimant’s leave was suspended and he was issued with an IS81 providing for a further examination under paragraph 2A of Schedule 2 of the Act, and the Claimant was formally detained.

10.	The IS81 in the evidence before me is not completed and has been generated from a computer snapshot. The Claimant was served with an IS91R informing him of the reasons for his detention and advising him of bail rights and also issued with a form IS86 requiring him to provide fingerprints.

The examination
11.	At around 1940 hours on 22nd September 2011 the Claimant was interviewed about his relationship with his civil partner. The Claimant contended that he was attending college regularly and also working at a hospital as a security officer. He was asked whether he was married and replied “yes in May 2011”. He was asked why his partner was in Bangladesh and the Claimant replied “he is a singer and he had a programme in Bangladesh”. The Claimant was then asked why he had travelled separately and he answered “because I have to go back to work and he is busy with his cultural programme and his singing”.

12.	 I note that at paragraph 61 of a witness statement dated 23rd April 2012, made for the purposes of his asylum claim, the Claimant stated that as his civil partner would not discuss problems he had with him in Bangladesh and because the Claimant did not feel safe in Bangladesh he decided to return to the United Kingdom.

13.	The Claimant did not make any witness statement for the purposes of this action and relied, as he is entitled to do, on the fact that it is for the Defendant to justify his detention.

The return of the Claimant’s civil partner

14.	On 23rd September the Claimant’s civil partner returned to the United Kingdom. He was interviewed and confirmed that his relationship with the Claimant was no longer subsisting. The Claimant’s civil partner made allegations that he had been the victim of abuse by the Claimant. The Claimant’s civil partner was asked to confirm that he was happy for the Home Office to use the withdrawal of support in any future action and replied “yes. He’s a threat to me and a threat to society and our borders. He will definitely get lost or go to France and misuse any photographic ID he has with him.” The GCID records suggest that this was noted up in the early hours of the morning on 24th September 2011. The civil partner’s plane had arrived at 2100 hours on 23rd September 2011 and so it appears that it had taken time to conduct the interview and to make up the notes.

The Claimant’s continued detention

15.	During the day on 24th September the Claimant’s case was allocated to Team 1 and a Chief Immigration Officer was identified. On 25th September 2011 notes were made on to the GCID record noting that because of the withdrawal of the sponsorship by the civil partner, the Claimant fell to be refused under paragraph 321a of the Immigration Rules. The notes suggested that before that occurred contact should be made with a specific Home Office Unit at Croydon to enquire whether it was intended to curtail the Claimant’s leave. It was recorded that if the Unit did not curtail leave then the Claimant could still be refused for a change of circumstances and given a full right of appeal.

16.	In terms of detention it was noted that the officer was minded to keep the Claimant in detention “given that the sponsor has alleged issues of domestic violence”. It was noted that a report had been made to the police and that they were undertaking enquiries. It was also recorded that if the Claimant didn’t appeal then he could be removed. Finally it was recorded that by maintaining detention enquiries could be made with Surrey police about the issues of domestic violence. Two actions were noted. The first was to contact the Unit at Croydon to determine whether they wished to pursue curtailment. The second was that once refused the Claimant was to be detained pending the lodging of an appeal. In the meantime liaison should be carried out with Surrey Police.
17.	Thereafter on 26th September the Claimant was taken to be detained at Harmondsworth Immigration Removal Centre. His induction was completed and no issues were raised. Such issues would have included any claims for asylum.

18.	 Nothing then appears to have occurred until 30th September when contact was attempted to be made with the unit at Croydon. An action was noted on 1st October 2011 to make contact with Croydon. Later entries suggest a fax was sent on 5th October 2011.
19.	The next relevant entry was on 6th October 2011 when there was a phone call from Surrey Police asking about the case, as the Claimant’s civil partner was reported to be really concerned and worried. The police officer was asked if the police would be pursuing the allegations, and was recorded to have said that if the Claimant was returned to Bangladesh then the Claimant’s civil partner would not pursue the allegations, but if the Claimant was released from detention then the allegations might be pursued. It was said that the police did have evidence.
20.	On 9th October 2011 a response to the fax sent on the 5th October 2011 was received from the Unit in Croydon. The Unit advised that in the light of this being a port case they would not pursue the issue of curtailment because of Heathrow’s intention to refuse the Claimant entry.
21.	On 9th October 2011 a decision was made to cancel the Claimant’s leave to enter. It was also decided to continue his detention pending his removal to Bangladesh.

Continued detention pending proposed removal

22.	On 17th October the Claimant appealed against the curtailment of his leave. The appeal was heard on 9th December 2011 and dismissed on 30th December 2011. This appeal was heard by an Immigration Judge who did not find the Claimant to be a homosexual, did not find there would be any risk of ill-treatment on the grounds that people believed the Claimant to be homosexual in Bangladesh, and dismissed his appeal. The immigration judge made strong criticisms about the reliability of the Claimant’s evidence. It is only fair to the Claimant to note that in later evidence before a further Tribunal the Claimant claimed that his witness statement prepared for the hearing in December had been prepared at very short notice, that he had not been provided with an interpreter at the hearing, and that he had misunderstood some of the evidence.
23.	On 13th January 2012 the Claimant applied for permission to appeal and this was refused on 6th February 2012. On 20th February 2012 the Claimant renewed his application for permission to appeal to the Upper Tribunal but permission was refused on 6th March 2012. Removal directions were then set for 31st March 2012. The Claimant continued in detention.

The late asylum claim
24.	On 29th March 2012 the Claimant claimed asylum. The screening interview took place on 1st April 2012 and the full asylum interview took place on 11th April 2012. The Defendant refused asylum for reasons given in a refusal letter dated 13th April 2012 but the Claimant appealed.

25.	The Claimant made an application on 26th April 2012 to be released either on bail or on temporary admission but this was refused by letter dated 28th April 2012. A bail application heard on 2nd May 2012 was refused.

26.	 The appeal against the refusal of asylum was heard in Harmondsworth on 10th May 2012. In a determination promulgated on 14th May 2012 the Immigration Judge found that, in the light of further evidence which was not available in December 2011, the Claimant was an active homosexual who had been outed by his civil partner in Bangladesh, and if the Claimant returned to Bangladesh he would not be able to conceal his sexual activity in his home area. The activity had been disapproved by his parents and close friends. The Claimant had a well founded fear that he would be persecuted because of his sexuality by state and non-state agents. His claim under the Refugee Convention and article 3 of the European Convention of Human Rights succeeded. The Claimant was released from detention on 14th May 2012.
These Proceedings
27.	On 17th September 2012 the Claimant issued these proceedings for Judicial Review. The relief sought was a declaration that his detention was unlawful, and damages. On 30th January 2013 permission to apply for Judicial Review was refused on the basis that the Claimant did not have an arguable case that his detention from 22nd September 2011 to the 14th May 2012 was unlawful.
28.	Amended grounds were lodged by the Claimant and in the light of those amended grounds the Defendant accepted that the Claim had become arguable and permission to apply for Judicial Review was granted on the 21st May 2013.
29.	Standard directions were made for the Claimant to file amended grounds of challenge and the Defendant to file detailed grounds of defence and any evidence. Provision was made for the filing of a trial bundle and for skeleton arguments.

Claims for damages in the Administrative Court

30.	The real relief sought in this action is a claim for damages for wrongful detention. Claims for damages alone may not be brought in the Administrative Court, see CPR 54.3(2) (“a claim for judicial review may include a claim for damages … but may not seek such a remedy alone”) and D and others v Home Office [2005] EWCA Civ 38; [2006] 1WLR 1003 at paragraphs 58 and 105. In this case the Claimant claimed a declaration that the past detention was unlawful so that the action was properly constituted pursuant to CPR 54.3(1), but in reality the claim for a declaration added nothing to the claim for damages.

31.	It is important not to encourage arid disputes about the Court in which disputes should be properly commenced. On the other hand it is relevant to note that the Administrative Court seeks to make speedy decisions auditing the legality of decision making. The procedures of the Administrative Court are not best suited to determine contested historic events where disclosure and cross-examination of witnesses will be relevant.

32.	In making decisions about the Court in which to commence proceedings, it might be noted that in this case the Claimant has gained nothing from bringing the action in the Administrative court. The Claimant had to obtain permission to apply for judicial review, when there was unfettered access to either the County Court or Queen’s Bench Division to bring a claim for damages. Either the County Court or the Queen’s Bench Division would have had power to manage the case in a way to ensure that the  costs remained proportionate, and that relevant disputes of fact were identified and then addressed by witness evidence. As it is the Claimant has made a number of points on the Defendant’s witness evidence which it would have been helpful to have had explored in oral evidence. As a result of the absence of any case management, points about implied limitations on the statutory power to detain, and nominal and real damages, were only developed in the course of the hearing. If, as in this case, a point about the interpretation of a statute is raised in an action for damages where it is considered that it might assist to have a Judge with Administrative Court experience to hear the Queen’s Bench Division claim, that consideration can be identified in the listing arrangements made in the Queen’s Bench Division.

33.	As is well known, the Administrative Court is very heavily listed. It would be unfortunate if, as a result of recent changes made to the allocation of business between the Administrative Court and the Upper Tribunal (Immigration and Asylum Chamber), cases auditing the legality of current decision making were replaced by actions which were in reality claims only for damages for wrongful detention well within the jurisdiction of the County Court.

34.	The position is obviously different in circumstances where there is a challenge to ongoing detention, see BA and others v Secretary of State for the Home Department [2012] EWCA Civ 944.

Issues

35.	I now turn to deal with the issues on this claim. I am very grateful to Mr Jesurum and Mr Blundell for their assistance in identifying the issues, and for their submissions. The issues now to be determined are:

(1)	The construction of the powers of detention set out in paragraph 16(1A) of Schedule 2.
(2)	Whether the Claimant’s detention between 22nd September 2011 and 9th October 2011 was lawful. This depends on my finding on the powers of detention set out in paragraph 16(1A) and any implied limitations on that power.
(3)	Whether if the Claimant’s detention was unlawful before 9th October 2011, the Claimant is restricted only to nominal damages.
(4)	Whether the Claimant’s detention between 9th October 2011 and 14th May 2011 was lawful. This depends on the application of the principles in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1WLR 704, as modified and approved in R(Lumba) v Secretary of State for the Home Department and others [2011] UKSC 12; [2012] 1 AC 1 245 at paragraphs 22 to 25.

Provisions of Schedule 2

36.	Paragraph 2A is headed “Examination of persons who arrive with continuing leave” and provides at paragraph 2 that “a person who has arrived in the United Kingdom with leave to enter which is in force may be examined by an immigration officer for the purposes of establishing whether there has been a change of circumstances, whether leave was obtained as a result of false information, or whether there are medical grounds on which leave should be cancelled.”

37.	Paragraph 16(1A) of Schedule 2 provides:

“A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending-

(a)	completion of his examination under that paragraph; and

(b)	a decision on whether to cancel his leave to enter. ”

38.	Paragraph 21 of Schedule 2 provides that the immigration officer may decide to grant temporary admission to a person who is being examined under paragraphs 2 or 2A.

39.	Paragraph 21 provides:

“(3) Sub-paragraph 4 below applies where a person who is at large in the United Kingdom by virtue of this paragraph is subject to a restriction as to reporting to an immigration officer with a view to the conclusion of his examination under paragraph 2 or 2A above.

(4)	If the person fails at any time to comply with that restriction –

(a)	an immigration officer may direct that the person’s examination shall be treated as concluded at that time, but

(b)	nothing in paragraph 6 above shall require the notice giving or refusing him leave to enter the United Kingdom to be given within 24 hours of that time.”

Powers of detention in paragraph 16(1A) and limitations of that power

40.	Mr Jesurum submits that the proper interpretation of paragraph 16(1A) is that there is no power to detain after the examination has been completed. That does not seem to me a proper interpretation of paragraph 16(1A). In my judgment paragraph 16(1A) provides for a power to detain pending completion of the examination under that paragraph, and a separate power to detain pending a decision on whether to cancel leave to enter. The use of the word “and” between 16(1A)(a) and 16(1A)(b) does not prevent this conclusion. Indeed it is consistent with the fact that a decision on whether to cancel leave to enter will follow a completion of an examination.

41.	I note that this was the conclusion on the interpretation of paragraph 16(1A) reached by Charles George QC sitting as a Deputy High Court Judge in R(Alo) v Secretary of State for the Home Department [2012] EWHC 2375 (Admin), and I agree with his conclusion.

42.	The Claimant contends, as an alternative, that any decision about the cancellation of leave had to be made within 24 hours. In support of this submission Mr Jesurum said that he had hoped to be able to rely on Parliamentary materials relating to the circumstances in which paragraph 16(1A) had been inserted in to Schedule 2. The insertion was made by the Immigration and Asylum Act 1999 and came in to force on the 14th February 2000. In the event there were no relevant Parliamentary materials submitted to me. Mr Jesurum also relied on the provisions of Schedule 2 which, he said, supported the 24 hour submission. Mr Jesurum noted that for those detained under paragraph 2 of Schedule 2, who were being examined and who did not have leave to enter (and who might therefore be thought to be in a worse position than those who did have leave to enter), paragraph 6 of Schedule 2 provided that notice giving or refusing leave had to be given not later than 24 hours after the conclusion of the examination. Mr Jesurum therefore submitted that those with leave should be subject to the same limitation. Mr Jesurum said that the submission was supported by the provisions of paragraph 21(3) and (4) of Schedule 2, set out above. Mr Jesurum noted that the limitation in sub-paragraph (4) applied to both paragraph 2 and paragraph 2A, and it was therefore to be implied into the power in paragraph 16(1A) that there be a 24 hour period for the decision after the examination.

43.	I do not accept these submissions. The power in paragraph 2A is not qualified by a limitation as to time. The limitation as to time for paragraph 2 is clearly set out in paragraph 6, and one might therefore expect a similarly clear limitation for paragraph 2A if there was to be one. The submission based on paragraph 21 does not assist. I accept that sub-paragraph (3) applies to both 2 and 2A, and that this is subject to sub- paragraph (4). However sub-paragraph 4(a) specifically affects paragraphs 2 and 2A. The fact that the limitation in sub-paragraph 4(b) affects only paragraph 2, does not make any nonsense of the wording of sub-paragraph (3). Mr Jesurum submitted that any statutory power to detain, and in particular any statutory administrative power to detain, needed to be strictly construed. I accept that submission, but there is in my judgment no lack of clarity about the powers to detain provided for in paragraph 16(1A).

44.	However, in common with most powers to detain, the power to detain in paragraph 16(1A) of Schedule 2 will be subject to implied limitations, so that the power is used for its statutory purposes.

45.	In my judgment the limitations on the power to detain set out in paragraph 16(1A) of Schedule 2 are the following;

i)	The Secretary of State can only use the power to detain pending a decision on whether to cancel leave to enter.

ii)	The detained person may only be detained for a period that is reasonable in all the circumstances.

iii)	If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to make a decision on whether to cancel leave to enter within a reasonable period, the Secretary of State should not seek to exercise the power of detention.

iv)	The Secretary of State should act with reasonable diligence and expedition to make the decision on whether to cancel leave to enter.

46.	 It can be seen that these limitations are an adaptation of the Hardial Singh principles as modified in Lumba and derive from the public law principle that any power must be used only for its proper purposes.

47.	Mr Jesurum submitted that when considering what was reasonable I should have regard to the 24 hour period referred to under paragraphs 2 and 6 of Schedule 2 when considering the power to detain pending a decision after examination with persons without leave to enter. Mr Blundell for the Defendant noted that the enquiries to be carried out for a person with leave to enter might be more extensive because the grounds on which a decision whether to cancel leave to enter were necessarily more complicated than the grounds on which leave to enter might be refused. In my judgment there is some force in that point, but that does not justify taking a benign view of delays while a decision about whether to cancel existing leave is made.
Unlawful detention from 26th September to 9th October 2011

48.	On the facts of this case it is apparent that up until 25th September 2011 the Defendant’s officers were acting reasonably and with expedition to determine whether to cancel leave to enter. However for the period from 25th September until 6th October nothing was actively done. There was a period of time while the Defendant was working out whether matters should be dealt with as part of the Croydon Unit or the Heathrow Unit but a fax does not appear to have been sent until 5th October and no contact appears to have been made with the police, until the police rang on 6th October to find out what was happening. In my judgment this was an impermissibly relaxed approach to be taken to the power to detain for the purposes of deciding whether to cancel leave. Therefore the detention of the Claimant was not lawful from 26th September 2011 until 9th October 2011 when the decision to cancel leave was made.
49.	However that is not the end of the matter because it is perfectly apparent from what happened on 9th October 2011 that if leave to enter had been refused on 25th September 2011, the Claimant would have been detained. In these circumstances the Secretary of State can contend that the Claimant is entitled only to nominal damages because he would have been detained in any event for all the reasons given in Lumba.

50.	Mr Jesurum accepts that the Claimant would have been detained in any event but contends that any detention after 25th September would be unlawful for exactly the same reasons that the detention is, he contends, unlawful from 9th October 2011, namely because the principles in Hardial Singh were infringed and the Defendant had breached her own policy on detention. I will therefore address this issue about whether the damages should be real or nominal when addressing the issue about detention between 9th October 2011 and 14th May 2011. It was not suggested that different considerations would have applied to the period between 26th September 2011 and 9th October 2011.
Detention lawful between 9th October 2011 and 14th May 2012 and nominal damages only for the period between 26th September and 9th October 2011

51.	It was common ground between the parties that in applying the Hardial Singh principles to the period of detention from 9th October 2011 until 14th May 2012 I should have regard to the Defendant’s published policy on immigration detention which was contained in the “Enforcement Instructions and Guidance”. I should record  that the wording of part of the policy changed on 25th January 2012 but that there was no material change in the relevant paragraphs.

52.	The Claimant emphasised in particular that part of the policy which provided that “there is a presumption in favour of temporary admission or temporarily release – there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified and all reasonable alternatives to detention must be considered before detention is authorised”.

53.	Both parties identified and referred to the factors influencing a decision to detain contained in the guidance at paragraph 55.3.1 which were: the likelihood of removal; whether there was evidence of previous absconding; whether there was evidence of a previous failure to comply with conditions of temporarily release or bail; whether the subject had taken part in a determined attempt to breach immigration laws; whether there was a history of complying with the requirements of immigration control; what were the ties to the United Kingdom; what were the individual’s expectations about the outcome of the case; whether there was a risk of offending or harm to the public.
54.	In my judgment the detention of the Claimant from 9th October 2011 until 14th May 2012 did not infringe the principles set out in Hardial Singh and modified in Lumba. It was plain that the Secretary of State was intending to deport the Claimant, and that was proved by the fact that the Secretary of State, having successfully resisted the Claimant’s first appeal and further applications for permission to appeal, had set removal directions.

55.	In my judgment the period of detention was reasonable. It is right to say that the period included an appeal, and the necessary delays that that incurred. However, but for the late claim for asylum the Claimant would have been deported within a period of some 6 months. There was therefore no expiry of a reasonable period. In my judgment the Secretary of State did act with reasonable diligence and expedition. There was a comparatively speedy hearing of the Claimant’s appeal, the Claimant became appeal rights exhausted after permission to appeal was refused, and removal directions were then set. After that there was a rapid and proper interview for asylum purposes before a rapid hearing of the Claimant’s claim for asylum.

56.	In these circumstances the real question raised by the Claimant’s detention is whether it was inconsistent with the policy. In my judgment it was lawful to detain the Claimant under the policy because there was a likelihood of removal within a reasonable timescale, namely the 6 months, and there was evidence from the Claimant’s former civil partner that the Claimant had entered in to a sham civil partnership in order to regularise his immigration status, which would have meant that the Claimant had no emotional ties to the United Kingdom. There was a risk of offending against the Claimant’s former civil partner. According to the Claimants former civil partner, the Claimant was likely to misuse any immigration documents that he had. I should out of fairness to the Claimant say that the Defendant was not in a position to determine that these facts were true, and I understand that the Claimant contends that they were false, but they were plainly all material facts to be considered when assessing whether it was lawful to detain the Claimant. In that respect the Defendant was entitled to note that the Claimant had joined the student queue, had faltered when asked about dates for studies, and had not provided information about the current state of his relationship with his civil partner when examined. For all these reasons it was lawful to detain the Claimant until his success with his late asylum claim.

57.	The hearing was on Wednesday 2nd April, and the draft judgment was circulated on Friday 4th April 2014. After circulation of the draft judgment Mr Jesurum very properly (see In Re M (A Child)(Non Accidental Injury: Burden of Proof) [2008] EWCA Civ 1261; [2009] 1 FLR 1177 at paragraph 36 and 37) raised a point about whether adequate reasons had been given for the finding that detention was lawful, given the Claimant’s ties to the United Kingdom and in particular his ongoing studies. As I recorded in paragraph 53 above, the relevant policy identified and referred to a number of factors influencing a decision to detain, and this included the issue of ties to the United Kingdom. As I have noted in paragraph 56 above, if there was a sham civil partnership as alleged by the Claimant’s civil partner would have meant that there were no ongoing emotional ties to the United Kingdom. As to the evidence about the Claimant’s ongoing education, the evidence was not clear. The Claimant had faltered when asked for information about his studies, as appears from paragraph 8 above. However he had contended that he was attending college regularly, as appears from paragraph 11 above. The Claimant’s civil partner had stated that the Claimant had not been studying. It appears that the Defendant had not pursued inquiries into this point, considering that the other matters about which there was evidence, which included the matters alleged by the Claimant’s civil partner, justified detention. In my judgment the Defendant was right to take that view. Even if the Claimant was still studying, it did not mean that a release would have been the right decision in the light of the matters set out in paragraph 56 above, and therefore the detention was justified.

58.	For all the above reasons I find that the Claimant is only entitled to nominal damages for the unlawful period of detention between 26th September and 9 October 2011. This is because the Claimant would have been lawfully detained in this period, while arrangements were made to remove him. It was not contended that different considerations would have applied over the period from 26th September to 9th October 2011. The timescale would have been the same.

Conclusion

59.	For the detailed reasons given above I find that there was a power to detain the Claimant pursuant to paragraph 16(1A) of Schedule 2. However the power to detain pending a decision on cancelling leave was subject to implied limitations. The decision to cancel leave should reasonably have been made by 25th September 2011. In these circumstances the Claimant’s detention between the 26th September 2011 and 9th October 2011 was unlawful. However the Claimant is entitled to nominal damages only for that period of detention because he would have been detained after leave had been withdrawn in any event, and that detention would have been lawful, as was the detention of the Claimant from the 9th October 2011 until his release on 14th May 2012.