Public Law Solicitors

The recent furore surrounding Foreign National Prisoners (FNP) and the debate over the basis upon which their appeals against deportation are allowed has recently been overshadowed in an unrelated incident relating to an FNP held within Immigration Detention.

Mr Lamari, an Algerian national, served a 12 month sentence for robbery. The 12 month sentence was significant in that he was automatically considered for deportation at the conclusion of that sentence. On the 15 December 2010, he was served with a deportation order and was thereafter held in Immigration Detention from 21 December 2010, following the completion of his sentence. There is no suggestion that this detention, justified on the basis that it was necessary to prevent re-offending and to secure his removal, was unlawful when it began.

Mr Lamari has not lodged an application to appeal this deport order and has not sought to frustrate his removal from the United Kingdom to Algeria, indeed he has completed various forms, and undergone telephone interviews by Algerian authorities, yet still remains within the United Kingdom and until recently within the detention regime.

The detention regime, whilst more relaxed than a prison regime, is still a difficult and challenging environment for detainees. As with prisons the inmates are a mixture of those that have been detained for lengthy periods and know the system and the newly arrived. Some detainees have mental health problems and some have a history of serious criminal offending.

The indicative offences for holding within a prison regime rather than an immigration one relate to Class A drugs, sexual offending against children or having been involved in a previous incident affecting the control of a detention facility. This leaves a wide swath of people who could have committed serious offences that will then be held within a mixed environment.

The detention regime is very expensive, with an average cost in 2010 estimated at £120 per day per detain ¹. The total costs of detaining Mr Lamari following his prison sentence was in the region of £62,000 for the seventeen months of his detention. Compare this to a Premium Inn stay at £29 per night, the costs of that for the same period would have been in the region of £15,000 plus food, a considerable saving to the public purse.

There is no question that Mr Lamari could lawfully be detained for the purposes of preventing him re-offending as this would be an unlawful use of immigration detention, we do still adhere sometimes to the adage that you are innocent until proven guilty and that prison is partly to reform offenders.

Mr. Lamari suffers from mental health problems and the High Court agreed with an expert assessment that these were exacerbated by the length and uncertain duration of his detention.

Mr Lamari’s challenged his continued detention in judicial review proceedings which were lodged with the High Court on the 5 March 2012, seeking the Claimant’s release from detention as an interim measure and judicial review of the detention overall. Interim relief was refused by Mr Justice Coulson on the date of issue on the following basis:

“the time is fast approaching when the Defendant has to decide either to deport the applicant or release him from detention. The present impasse cannot go on for very much longer”
This appeared to be a clear indication to the Secretary of State for the Home Department, that she had better get on with the job in hand, and either remove the Claimant to Algeria or let him out of detention.

On the 23 April 2012 Mr Justice Lloyd – Jones ordered that the Court would deal with all of the issues, including the question of whether the case should be given permission to proceed, in one hearing.

On the 25 May 2012, the matter came before a Deputy High Court Judge, His Honour Judge Cotter QC. In the course of the hearing he indicated his clear view that the Claimant detention was currently unlawful and as such the Claimant should be released from detention within as the next two weeks which would allow time for arrangements to be made (including tagging arrangements). At the request of the Secretary of State for the Home Department he granted a short adjournment to allow the Secretary of State to make an undertaking that the claimant would be released by that date, thereby avoiding the need for an order. The Claimant should have been released no later than the 8 June 2012.

Enquires made by Duncan Lewis on 8 June indicated that, due to a serious administrative error, the relevant UKBA personnel were not aware that the Claimant was due for release, and that is why there had been no action on the matter. Although that is itself deeply regrettable, the Court was clear that in those circumstances it was incumbent upon the Secretary of State to take immediate action.

On the 12 June 2012, an application was made by the lawyers acting for the Secretary of State for the Home Department to release them from the undertaking given on the 25 May 2012, on the basis that they did not have sufficient authority to authorise this undertaking. The application also made clear that she had reviewed the Claimant’s detention and had decided that there was no good reason for his release.

On the 13 June 2012, an application was made by the Claimant’s Solicitors to seek the release of the Claimant in line with the undertaking given by the Secretary of State. The application from the Defendant was dealt with by a Duty Judge on 13 June 2012, who temporarily stayed the further enforcement of the undertaking recorded in the Order.

The consequences for a lawyer of failing to comply with an undertaking are extremely serious, and can result in being removed from the profession. An undertaking is defined as a clear and unequivocal statement upon which the other party is intended to rely upon.

The consequences for a litigant for not complying with undertakings are somewhat different, they cannot be disciplined by their regulatory body, but the court can force them to comply. This is done through either detention or fines, until compliance is achieved.

On the 14 June 2012, an application that the Secretary of State be held in contempt of court was made by Duncan Lewis following which the Claimant was released from detention late in the evening, and provided accommodation the following day. An application for contempt of Court was made the same day, and arranged to be heard on the 18 June 2012, when judgment in the matter was to be handed down.

At hand down, His Honour Judge Cotter QC, considered the contempt issue, and for the second time in history found the Home Secretary to have been in contempt of Court. He also ordered that the issue of damages, including aggravated damages for the further periods of detention following the undertaking, be transferred to the Queen’s Bench Division of the High Court for consideration.

The first time that the Home Secretary had been found in contempt was in the case of M v Secretary of State for the Home Department ² [1994] 1 AC 377, in which the House of Lords held that the Home Secretary can in their official capacity be found in contempt of court for the failure to comply with an Order of the Court.

That case, which was described as
" remarkable for the chapter of accidents, mistakes and misunderstandings which has occurred." [1992] 1 Q.B. 284.

arose from a failure to comply with an injunction to stay the removal of a Zairean national .

The accidents, mistakes and misunderstandings as in the instant case did not provide the get out of jail card that the then Home Secretary Mr Barker had hoped for, as the Court maintained that he was indeed in contempt for the failings of his department and specifically the decision not to act in accordance with an undertaking given.

The judgment in the current case of R oao Lamari v SS Home Department ³ [2012] EWHC 1630 Admin, in relation to the actual contempt has, now been handed down.

[35] The purpose of the court's powers to make findings of contempt is to ensure that orders of the court are obeyed. This jurisdiction is required to be co extensive with the court's jurisdiction to make the very orders which need the protection which the jurisdiction to make findings of contempt provides.


The fallout from the decision is that all paper consent orders recording an agreement or undertaking from the Home Department in relation to Duncan Lewis clients are currently suspended pending an investigation into the outcome of this matter. This is currently having a catastrophic effect on the good order of the Court system on the basis that orders are not being processed and cases are backlogging. Further currently no undertaking or agreement at a court hearing can be agreed until assurances are in place to validate the person giving undertakings, this means that as in the case of Lamari a judge will now have to have a full discussion on interim-relief pending a final judgement. This will consume considerable judicial time, and may lead to a future of justice being delayed, within a system already struggling with the strain of cases.

Why is the Home Secretary not personally fined, imprisoned or in other way sanctioned? Well the simple reason is that by the time of the hearing she had already released the Claimant, and further that the Ministers whilst liable in their official capacity for the failures of their department are not liable in their personal capacity (at any rate absent clear evidence that the contempt emanated directly from them personally) and as such no imprisonment or fine would be appropriate. The Court proceeds on the basis that a Minster will always intend to comply with the Rule of Law and as such there should never be a need for a Minister to be told twice.

In the case of MSA v London Borough Croydon [2009] EWHC 2474 the honourable Mr Justice Collins, one of the most experienced judges of the High Court, set out in detail the reasons why he could not sanction the Borough legally, and then further why it would not normally be necessary. His Honour was more than confident that simply the threat of being found in contempt should the shortcomings be pointed out would resolve the issue, and if it did not a contempt order with a mandatory order to comply would resolve the issue. The finding that the public body was in contempt would be enough of a remedy.

The failure to comply with undertakings is more common than it should be. In two recent examples lawyers have had to return to court and re-open Judicial Review proceedings settled on the basis of undertakings and threaten contempt proceedings in order to secure compliance with the undertakings.

The Home Secretary is now on her second strike; it can only be a matter of time in the current climate of Ministerial interference in the court process before the Home Secretary has her third strike and may be out.

¹Immigration Detention in the UK | The Migration Observatory
² http://www.bailii.org/uk/cases/UKHL/1993/5.html
³http://www.bailii.org/ew/cases/EWHC/Admin/2012/1630.htm
⁴MSA v London Borough of Croydon [2009] EWHC 2474 (Admin) (12 October 2009)

By Adam Tear