And what if a eurozone collapse sent thousands of economic migrants heading north from Greece or Spain? Could she legally restrict their right to come to Britain?

This is another eyes-narrow moment. “As in every part of government, it is right that we do some contingency planning on this,” she says. “That is work that is ongoing.” But could you restrict entry in an economic emergency? “We will be doing contingency planning.”

You can see yourself from the words she uses that she herself never suggests suspension of free movement rights, she merely fails to refute it. This circumspection on May’s part did not, however, prevent The Telegraph then putting words into her mouth in the headline for a separate article entitled Theresa May: we’ll stop migrants if euro collapses, followed then by the BBC and, amongst others, Channel 4 News. That last link is to an interview I did with C4N in which I express polite astonishment at the whole idea whilst wearing my nicest red tie:

So, if we read what May actually said, it looks like a storm in a teacup and no-one really seems to be suggesting that one of the four fundamental freedoms of the European Union, that of people, be suspended.

But… what if the UK Government were contemplating suspending free movement rights for at least some European citizens? Well, the short and legal answer is that they should stop because it simply can’t be done, at least without leaving the EU entirely.

The common market is the whole point of the EU and free movement of people is one of the four essential pillars holding it aloft. It would be surprising if the drafters of the EU Treaties had inserted somewhere a mechanism that would permit suspension of such a basic, founding principle of the EU, one that is embedded into the fundamental Treaty on the Functioning of the European Union at Article 45. On top of that, the right to freedom of movement for EU citizens (every citizen of every Member State is also an EU citizen) is enshrined separately at Articles 20 and 21 of the Treaty. And that is before we get started on the Citizens’ Directive. Or the fact that discrimination on the basis of nationality is prohibited by Article 18, so any restrictions on Greeks would need to be applied universally to all EU citizens.

The idea that freedom of movement could be suspended also ignores the reciprocal nature of the common market. I once heard that Brits are the third highest users of free movement rights in the EU. There are many, many Britons living in other EU countries, including Greece, or who own property there. If the UK were unilaterally to take action against Greece and Greeks, surely it must be expected that retaliation would follow?

In short, a new Treaty would be needed.

To support the idea that restrictions might legitimately be considered, The Telegraph points out that free movement for some new Member States was restricted, but this is a completely different kettle of fish. It is possible to delay implementation of full free movement rights for workers of new Member States for up to seven years. Greece joined the EU in 1981, so that ship has pretty much sailed, I think. We already have restrictions on Bulgarians and Romanians, and these cannot legally be tightened up any more than they are already.

The Telegraph also points to discussions within the Schengen area last year about reintroduction of border controls in response to the Arab Spring. It is indeed possible to suspend the Schengen agreement and reintroduce border checks in an emergency. The Schengen area consists of some states within the EU that have agreed to remove border controls between one another. For example, there are no border controls between Italy and France and so on. As the UK has never been part of Schengen, this is utterly irrelevant to the UK and I imagine that even if the UK for some reason would prefer that other Member States themselves reintroduced border checks, those Member States would tell the UK that it is none of our business.

Article 347 TFEU might at first blush appear to offer a means of looking again at the common market, but it rather looks like the apocalypse would need to happen first:

Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.

Maybe the apocalypse is in fact on its way. Even then, though, it is hard to see how destroying the internal market could possibly be seen as saving it.

Tanveer Ahmed [2002] UKIAT 00439, [2002] INLR 345, [2002] Imm AR 318 does not apply to court documents apparently. In this controversial old case Mr Justice Collins, then President of the Immigration Appeal Tribunal, held that documents are not self proving even if prima facie valid and some sort of additional proof is required beyond the document itself. Some might take from this the absurdity of the Tanveer Ahmed approach while others might question why the tribunal has departed from that approach in this new case.

The tribunal also in Buama reaffirms an old immigration adoption case, VB v Entry Clearance Officer Ghana [2002] UKIAT 01323: most inter-country adoptions are probably with a view to facilitating entry to the UK as that would be their very purpose. What is really meant by an ‘adoption of convenience’ is one that has no substance in it, like a marriage of convenience.

The judge goes on to find that there was a genuine transfer of parental responsibility in this case and the appeal was allowed.

A note of caution in inter-country adoption cases: these are complex and it is all too easy inadvertently to break the law. Watch out in particular for section 83 of the Adoption Act 2002, which makes it an offence to bring a child into the United Kingdom in circumstances where the section applies and the Adoptions with a Foreign Element Regulations 2005 (unamended original version here) have not been complied with. Legal advice is likely to be necessary in these cases but further information can be found in the UK Border Agency leaflet Inter-Country Adoptions and the Immigration Rules and the relevant Immigration Directorate Instructions on Adopted Children.

Moo!

In the case of Mumu (paragraph 320; Article 8; scope) Bangladesh [2012] UKUT 143 (IAC) Judges of the Upper Tribunal Storey and Lane have dismissed an appeal against a refusal under paragraph 320(7A) of the Immigration Rules. This reads as follows:

(7A)  Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts had not been disclosed, in relation to the application.

The tribunal finds, perhaps rather unsurprisingly given the text of the rule, that the deception need not be that of the applicant and dismisses the case under the Immigration Rules. Note, though, that the tribunal explicitly records that dishonesty is required. An invalid document or a document that is marred by a mistake is not necessarily a dishonest one that would be caught by paragraph 320(7A). On the facts of this case the dishonesty was established: the false document in question deliberately misstated the appellant’s age so that she wrongly appeared eligible for a spouse visa at a time that the rules (unlawfully) required her to show she was aged 21.

The tribunal also addresses the suggestion that the appeal should be allowed on human rights grounds notwithstanding the deception.The argument that it was pointless to dismiss the appeal because a future application would succeed (paragraph 320(7C) would exempt the applicant from refusal under paragraph 320(7B)) was rejected, as was the inverse contention that the current appeal should now succeed because there was a risk of future refusal under paragraph 320(11).

The possibility that a case with different facts might succeed on human rights grounds was, however, explicitly left open:

Nothing in what we have just said should be taken to amount to a finding that it will never be disproportionate in Article 8 terms to uphold a decision under paragraph 320(7A).  Each case ultimately turns on its own facts.  There may well be cases where, despite the public policy issues inherent in paragraph 320(7A), it would nevertheless be disproportionate to refuse entry clearance.  The point we wish to make, however, is that the effect of 320(7B) and 7(C) is not such as to cause paragraph 320(7A) to be “read down” in a general way.

This case is notably a relatively rare example of the section 108 procedure being used, where an appellant’s representative is excluded from the hearing room while evidence of forgery is examined. One assumes the safeguards in OA (alleged forgery; section 108 procedure) Nigeria [2007] UKIAT 00096 were observed.

Close on the hooves of Mumu followed another case on paragraph 320 deception, that of  Singh (paragraph 320 (7A) – IS151A forms – proof) [2012] UKUT 00162 (IAC). In this case UTJ Lane, sitting alone this time, deals with one of the increasingly frequent cases of alleged non-disclosure on a Visa Application Form (VAF). The slightest mistake on a VAF seems to trigger these dishonesty refusals at certain entry clearance posts.

Mr Singh had previously overstayed in the United Kingdom. He had then attempted to make a Tier 1 application which had been rejected. He made a voluntary departure and as he did so he was served with an  IS151A form on the ’flight-side’ of the airport when he was randomly encountered.

In making an application to return to the UK some time later, Mr Singh had answered ‘yes’ the question on the VAF about whether he had made a previous application in the United Kingdom and provided the date of application and the Home Office reference number with which he had been issued. He answered ‘no’ to the question about whether he had previously been refused a visa to the UK or any other country. This was a correct answer as he had been refused leave to remain, not entry clearance, colloquially known as a ‘visa’.

Despite this, First-tier Tribunal judge I F Taylor felt that there was some sort of ‘in the round’ deception by Mr Singh. The Upper Tribunal had no hesitation overturning this finding, describing the judge’s approach as ‘an excessively harsh test’.

This left the remaining question of whether Mr Singh’s negative answer on the VAF to the question about whether he had been ‘otherwise required to leave’ the UK or any other country. UTJ Lane found that the UK Border Agency had failed to establish their case, which was that Mr Singh had been served with a document that would actually require a person to leave the UK.

The appeal was therefore allowed.

Even if the relevant document, an IS151B, had been served, some might question whether such service at the departure gates really amounts to ‘requiring’ a person to leave. It suggests a certain amount of wishful thinking at the Border Agency and it also casts considerable doubt on removal statistics. I wonder how many supposedly ‘enforced’ removals in the immigration statistics are actually cases like that of Mr Singh, where the migrant is served with papers when they are in truth making a voluntary departure?

In Sawmynaden, the appellant had travelled to the UK on a number of occasions since 2001 in order to visit her daughter.  The appellant had stayed for a period of 172 days on her last visit to the UK in 2010. This had been within the period she was legally permitted to stay, but nevertheless the ECO refused the application, partly on the grounds that the appellant had spent too much time visiting the UK.

First-tier Tribunal Judge TRP Hollingworth, in dismissing the appellant’s appeal, found that she was not an “ordinary visitor” (a what?).

In addition, the Immigration Judge found the motivation(s) of the appellant “…overall were probably to use such visits in the future as a preliminary to settlement here at some stage.”

Thankfully, in response to this remarkable premonition, the Upper Tribunal state:

14. Once again, this is not the issue that the Immigration Judge was required to determine. Whatever the future applications may be or, indeed, whether they will or will not succeed (all of which is speculative) it appears that he accepted that the appellant was a visitor albeit for a purpose that he found fell outside those permitted under the Rules.  We are satisfied that this reasoning is wrong in law.  The sole issue before the Judge was whether the appellant intended to visit which necessitated her also establishing that she would leave at the end of the period permitted for a single visit.

The Upper Tribunal allowed the appeal, finding that:

16. We are satisfied that there was no reason for the Judge to dismiss the appellant’s claims, short of making an adverse credibility finding. However, there was, and is, no material upon which such a finding could properly have been made. The death of her husband was a reasonable explanation for her wishing to spend more time with her children. It follows that the appeal must succeed.

Along with reversing the unsustainable decision of the First Tier Tribunal, the Upper Tribunal outlines the following factors relevant to an assessment of a genuine visitor at paragraph 17 of the case:

(i) There is no restriction on the number of visits a person may make to the UK, nor any requirement that a specified time must elapse between successive visits.

(ii) The periods of time spent in the United Kingdom and the country of residence will always be important.

(iii) Both the expressed purpose of the visit and what the appellant has done in the past and intends to do in the future is material, together with the length of time that has elapsed since previous visits.  In cases of this type, the appellant will be visiting a relative, often a parent visiting a son or daughter, often a son or daughter visiting a parent.  In the case of a parent visiting a son or daughter, the parent will often fully participate in helping in the house, providing child care.  In the case of a son or daughter visiting a parent, the adult child will often assist in care arrangements. None of these activities, for that reason alone, will take the individual outside the definition of a genuine visitor.

(iv) The links that the appellant retains with her country of residence will be a material consideration.  Inevitably, there is likely to be access to accommodation if only for the purpose of returning home in order to make the application that is intended to result in a return to the United Kingdom.  The presence of other family members will be a material consideration.

(v) The Tribunal is required to ascertain what is the reality of the arrangement entered into between the appellant and the host in the United Kingdom.  Is the reality that the appellant is resident in the United Kingdom and intends to be for the foreseeable future?

(vi) The issue may be approached by considering whether the reality is that the appellant is now no more than a visitor to her country of residence as the purpose of the return home is confined to using his or her presence there solely as the means of gaining re-admission to the United Kingdom.

(vii) This does not preclude the appellant from remaining in the country of residence for the least amount of time sufficient to maintain her status as a genuine visitor.

(viii) Family emergencies, whilst likely to result in a longer visit than the established pattern should not be regarded as taking up residence without adequate supporting evidence to that effect.  Thus, the pregnancy of a daughter or daughter-in-law or the aftermath of the birth might explain     a more-protracted stay (within the 6-month duration of a single permitted visit); so, too, a serious medical condition.

(ix) There may be comparisons with the person who owns homes in two different countries.  Is he resident in both or a visitor to one of them?

This guidance will hopefully be of use to all concerned between now and 2014, when family visit appeals are expected to get the chop.

[ed. Disappointing the tribunal didn't here refer to the admittedly aged Immigration Appeal Tribunal case of Powell (3129) which I think from my now long-ago initial IAS training settled the issue of repeat long visits back in the mid 1970s, and did so without proposing the use of a can opener to examine the contents of people's brains.]

As in previous years, a team from Renaissance Chambers is today undertaking the London Legal Walk and seeks sponsorship. We provide this blog free of charge but if you would like to support our cause we would be grateful. Follow this link to do so.

I myself, shamefully, will not be on the walk but other members of our immigration team will be.

For those unfamiliar with the procedure, an Opinion precedes a judgment and the judgment usually follows the Opinion, at least in outcome if not in reasons.

The Advocate General advocates a middle ground position in terms of the obligation imposed on Member States by Article 3(2) of the Directive, but suggests that the Article must impose some sort of binding obligation and is not merely permissive:

In the minds of those who drafted it, that provision was therefore certainly conceived as a provision not in the order of wishful thinking, but, on the contrary, as a provision binding on the Member States, whatever the extent of the latitude which they are allowed … I accordingly take the view that Article 3(2) of Directive 2004/38 does not merely offer the Member States a possibility, but imposes on them an actual obligation to adopt the measures necessary to facilitate entry and residence for persons coming within the scope of that provision. The substance and precise scope of that obligation still remain to be determined.

On the question of whether the obligation is a procedural one of simply offering ‘extensive examination’ of an application or whether there is a presumption of admission, Bot prefers the procedural approach:

I do not share the view taken by the AIRE Centre to the effect that other family members benefit from a presumption of admission. First of all, the requirement of a dependency on the Union citizen laid down by Article 3(2)(a) of Directive 2004/38 seems to me to constitute, not a presumption, but a precondition for the applicability of that provision. Second, recognition of a presumption of admission stemming directly from that directive appears to me to be at variance with the reference to the law of the Member States for the purpose of defining the conditions for obtaining the right of entry and residence implied by the clause ‘in accordance with its national legislation’.

He goes on to argue that the Article permits Member States ‘enormous latitude’ and requires ‘only a certain degree of harmonisation by means of a measure containing only minimum requirements’. Nevertheless, ‘[t]his does not mean that Member States have unfettered freedom to facilitate, as they wish, entry and residence for persons coming within the scope of that provision.’

More positively, Bot suggests that additional qualifying criteria beyond those stated in the Article cannot be imposed, such as a requirement of a registered partnership or relationship akin to marriage in respect of a ‘durable relationship’. Later in the Opinion he also states that the additional imposition of a requirement of compatibility with national legislative provisions is incompatible with the Directive and that the Directive may be relied on as being directly effective.

Bot goes on to endorse the Metock approach to regularisation of illegal status within the territory, a point already conceded by the UK Government in the Bigia [2009] EWCA Civ 79 case.

He considers the ramifications of Zambrano, McCarthy and Dereci and the notion of EU Citizenship, concluding:

The combination of the right of residence attached to Union citizenship and protection of private and family life, as implemented by EU law, may therefore effectively establish a right of residence for members of the family of the Union citizen … I conclude that the fundamental right to private and family life may, in principle, be relied on by all categories of persons mentioned in Article 3(2) of Directive 2004/38.

That is not to say that such cases must succeed on this basis, but that residence must not be refused ‘where such refusal has the effect of unjustifiably impeding the exercise of the right of the Union citizen concerned to move and reside freely within the territory of the Member States or causes a disproportionate impairment of his right to respect for private and family life.’

On the question of whether dependents or members of household need establish immediate prior shared residence in another EU Member State, Bot opines thus:

Whilst it would seem self-evident that family members who declare themselves to be members of the household of a Union citizen must prove that they reside with the Union citizen, and thus necessarily in the same State, I take the view, conversely, that ‘dependent’ family members cannot be excluded from the scope of Article 3(2)(a) of Directive 2004/38 on the ground that they have not resided in the same State as the Union citizen whom they wish to accompany or join. This view is based on reasons relating to the wording of the provisions of the directive and its purpose, and to the case-law of the Court.

He accepts that there must be dependency in the state of origin but goes on to suggest that it is also impermissible to require that the dependency be recent:

Nor does there appear to be anything to justify a requirement that the situation of dependency must have existed shortly before the Union citizen moved to the host Member State, when the relevant criterion is the time at which the application for entry and residence is made. If the dependency existed at the time of settlement in the host Member State, but has been interrupted since then, the condition laid down by Article 3(2) of Directive 2004/38 will not be satisfied. If, on the other hand, the situation of dependency arises after the Union citizen enters the host Member State, the family member may be regarded as being ‘dependent’. This could be the case, for example, for a Union citizen who, after exercising his right of free movement, is required to care for a nephew whose parents have recently died.

Finally, Bot accepts that national legislation may set criteria for issues such as dependency:

I take the view that Article 3(2)(a) of Directive 2004/38 does not preclude national legislation which makes entry and residence for a national of a non-member country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

Personally I find this final conclusion impossible to reconcile with the earlier conclusion that, for example, it is not permissible further to define or restrict the term ‘durable relationship’, but perhaps I am missing something.

The immigration tribunal and the courts have until recently taken a hardcore conservative line on other family members, and it looks like they were wrong to do so. Things have moved on though, and the most recent cases on this subject, Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) and Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC), seem to be pretty much consistent with Bot’s Opinion.

It would be refreshing to live to see the tribunal erring on the side of liberality.

The excellent team in GS (India), Declan O’Callaghan and Natalie Lieven QC of Landmark Chambers instructed by Jasvir Jutla & Co, all acting pro bono as I understand it, appealed the tribunal’s decision and the case has now been remitted by the Court of Appeal to the Upper Tribunal by consent with the Home Office. It would follow that the reported case of GS (India) should no longer be followed. The Consent Order can be found here.

The case now seems to be going forward in the Upper Tribunal to consider the legal test in N v UK against the specific medical issues thrown up by removal of a patient dependent on dialysis to sustain life. A very senior panel that includes the President is apparently being put together for the case.

For what it is worth I recently had a similar success story in another medical treatment case working with Sriharans Solicitors and led by Raza Husain QC. In this case the original immigration judge allowed the appeal on Article 3 grounds, it was overturned on appeal by a Deputy in the Upper Tribunal, we appealed to the Court of Appeal and the Home Office has now agreed to restore the decision of the original judge, meaning that the client will be granted the leave to remain that will enable him to live.

These cases are worth fighting.

The justification is cost saving at both the Ministry of Justice and the Home Office. Appeal fees were introduced last December so increasing those would be another way of addressing that particular issue at the MOJ. Presenting Officers are like hen’s teeth at the moment and are never instructed for family visit appeals as far as I can ascertain, so fighting the appeals isn’t exactly costing a lot at the Home Office either.

In addition the Government proposes to curtail in-country appeal rights against decisions to vary a person’s leave where in the Home Office’s view it is not conducive to the public good for the person to have leave to enter or remain in the UK and to increase Immigration Officer powers yet further.

Those with long memories, or like me who read this recent Guardian article by Alan Travis, will remember that visitor appeal rights were last abolished by Ken Clarke under the last Conservative government back in the 1990s on the basis that they were not a matter of life or death The right of appeal was restored by Labour as a manifesto commitment.

Any lawyers serious about fighting this change should consider joining ILPA and contributing to the lobbying effort. But, despite Damien Green’s revolting comments about family visit appeals being “an absolute goldmine for immigration lawyers”, it won’t be the lawyers who suffer. This should do our judicial review practices no end of good, as an application for judicial review will be the only means by which a visit visa refusal can be challenged in future. It is ethnic minorities who will lose out as their relatives are denied visas to visit for weddings, funerals and other family events. Family is important to this Government, as long as your family isn’t foreign.

As I understand it, the nine Kuwaiti migrants were removed first. So were the people smugglers. Although it doesn’t actually explicitly say so anywhere in the press release. Indeed, Regional Director, Simon Walker at the UK Border Agency is quoted as saying

Immigration abuse will not be tolerated, and we will always take the strongest possible action against those involved.

This really is getting tough.

Already some cases involve extreme periods of administrative detention at the whim of a Government department equivalent to heavy criminal sentences for genuinely serious offences. R (on the application of Amougou -Mbarga) v Secretary of State for the Home Department [2012] EWHC 1081 (Admin), for example, involved immigration detention of four years and two days. The facts of that particular case were unusual, though, and it is an example of extreme use of deception rendering even an extraordinary period of detention lawful. Irwin J dismissed the claim:

The facts here are striking. This is not merely a case of a refusal to co-operate with removal. Against a backdrop of repeated criminal offending involving deception, this is a story of gross repeated deception perpetrated by the Claimant to avoid removal. That deception has been successful in the past in confusing the authorities and in defeating his deportation, as outlined above … The Claimant had lied so long and so successfully that the authorities were entitled to feel he might be attempting to deceive them again. There was an obvious risk that they might attempt once more to deport him to the Cameroon, only to find that he went through another volte face, denied he was Cameroonian and achieved another humiliating and expensive return to the UK.

In that context it seems to me, it was not merely reasonable but necessary to continue the detention of the Claimant until the authorities were clear they had documentation, evidence and arrangements in place which would ensure his effective removal.

The other cases to report here involve various different policy failings by the UK Border Agency, where a policy itself was unlawful or, more usually, where a lawful policy was overlooked or misapplied in some way. In some of these case the failing is found to be a material one without which the detainee would not have been detained but in others the failing would not have affected detention.

The most worrying of the cases is R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin). In this case a man with mental health problems of sufficient severity to require his admission to a mental health hospital for compulsory treatment was detained for several months in ordinary immigration detention. Even before his immigration detention began there were serious concerns about his health as he refused food (under camera observation) for two weeks and was only drinking sips of water but from a flushed toilet bowl. He was then moved within immigration detention five times in a few weeks, which must have been unsettling in itself. His medical notes were not transferred with him and although concerns were regularly expressed about his welfare and behaviour it was only after several months of immigration detention that a proper psychiatric assessment was conducted, at which point the doctor thought it likely that the man was suffering from a psychotic illness and recommended treatment. Finally, over five months after this assessment, he was transferred to hospital for treatment. By this time he was expressing paranoid delusions, was self-neglecting, had bizarre behaviour with persecutory delusions, would not eat in the dining room, would only eat bread and milk for fear of being poisoned and slept on the floor because of his fears. He was eventually diagnosed as suffering paranoid schizophrenia.

Despite proactive steps by his lawyers and doctors, the claimant was then re-detained under immigration powers with no notice. Bail was eventually granted by a High Court judge.

Singh J found that the period of detention after the proper psychiatric assessment was unlawful and indeed the Home Office did not seriously attempt to contend otherwise. The second period of re-detention was also found unlawful. The judge also concluded that the claimant had suffered degrading treatment (a breach of Article 3 of the European Convention on Human Rights), that the detention policy on those with mental illnesses had been unlawfully changed without a proper equality impact assessment as required by law and that the policy had not been applied in the claimant’s case.

A finding of a breach of Article 3 ECHR is unusual, but it certainly appears justified on the facts of this case. A worrying lack of regard for the detainee’s welfare emerges from the UKBA records, where his non-compliance with procedures was treated as a further reason to justify detention rather than raising concerns about his wellbeing.

In the case of R (on the application of Abdollahi) v Secretary of State for the Home Department [2012] EWHC 878 (Admin) Beatson J rejected the claimant’s submissions that his 26 month detention was unlawful because of his pending asylum case and the presence of his wife and children in the UK. It was argued that there was no real risk of absconding nor a real prospect of removal. Like in Amougou -Mbarga, though, there were some unusual circumstances. The claimant had already made voluntary departures from the UK twice in previous years but had re-entered, had managed to obtain false passports for himself and his family and was insisting he would not return to Iran. The judge found that the statutory duty to have regard to the safety and welfare of children had not been properly applied in this case and the Office of the Children’s Champion within the UK Border Agency had not been consulted, in breach of policy, but that had this happened it would have made no difference and the claimant would have ben detained anyway. The detention was found unlawful but only nominal damages were to be awarded.

In contrast, in the case of R (on the application of Bizimana) v Secretary of State for the Home Department [2012] EWCA Civ 414 the Court of Appeal held that the proper application of the section 55 duty would have affected the outcome. The claimant was detained under immigration powers for 21 months. Throughout this period his wife and children were lawfully resident in the UK. Jackson LJ held that the coming into force of section 55 in late 2009 combined with the increasingly obvious difficulty in establishing the claimants nationality (Burundi, DRC and Tanzania were all possibilities) rendered the detention unreasonable for the final five months. The issue of remedies and damages was remitted to the Administrative Court.

Lastly, see David Rhys Jones’ excellent recent post on detention policy in torture cases. David’s post focusses on the important issue of how medical reports are to be understood and the weight to be attached to the opinion of a medical professional. The outcome of the case, R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521, was that the detention was found to be unlawful because the Secretary of State was in breach of her own policy on detention where there was independent evidence of torture. As an aside, the line taken by the Home Office in that case is reminiscent to my mind of that taken in cases of proving domestic violence. Any evidence that emanates from the survivor is rejected as being based on his or her account – but unless a reliable third person was present at the time of the violence, that approach eliminates almost any evidence at all from consideration. It is based on the unfortunate world view of some at the UK Border Agency, which is that victims of trauma are all lying liars who lie unless they can conclusively prove otherwise.