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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> I, R (on the application of) v Secretary of State for the Home Department [2002] EWHC 750 (Admin) (22 February 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/750.html Cite as: [2002] EWHC 750 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		22 February 2002

1. JUDGE WILKIE: These are two linked applications. The first is for an order of habeas corpus, the allegation being that the claimant's continuing detention is unlawful. The second is for judicial review of that continuing decision to detain, allegedly in breach of Article 5 of the European Convention on Human Rights.
2. The claimant was born in 1962 and is a citizen of A. He arrived in the United Kingdom on 7th January 1998 and applied for asylum. That application was refused, but exceptional leave to remain was granted in two stages, the latter to expire on 28th March of this year.
3. In October 1999 he was convicted at a Crown Court of two counts of indecent assault on a minor and was sentenced to three years' imprisonment. As a corollary of that length of sentence he became liable to register as a sex offender and to keep registered indefinitely. In addition the trial judge recommended that he be deported.
4. On 23rd January last year the Secretary of State signed the relevant deportation order, and that was duly served on the claimant. His date for release from the three-year sentence, taking into account time spent on remand, was 7th February last year. Therefore the nominal sentence of three years will not expire for a period of 18 months from that date, namely on 6th August of this year.
5. The claimant was not, however, released but was immediately detained and remains in custody pursuant to paragraph 2(3) of Schedule 3 of the Immigration Act 1971, pending his removal from the United Kingdom.
6. On 9th April last year his then solicitors launched an appeal against the deportation order, apparently appealing against the destination to which he would be sent. But that was an invalid appeal because it nowhere stated where otherwise he might be sent. However, in terms the appeal also raised the question of an application for asylum based on a well-founded fear of persecution which was being alleged. The Home Office took that appeal to constitute a fresh application for asylum and therefore apparently decided to treat it as such.
7. There is in CM 4018, entitled "Fairer, Faster and Firmer - A Modern Approach To Immigration and Asylum", a statement of the policy of the Home Office, which includes a statement that it aims to ensure that by April 2001 most initial asylum decisions will be made within two months of receipt, and that most appeals to adjudicators will be heard within a further four months. Notwithstanding the existence of those targets, nothing apparently happened in relation to the asylum application for just short of seven months, when, on 2nd November, there was an asylum interview.
8. That interview resulted in a decision on 28th January of this year which refused his application for asylum on two bases. Firstly, it was not accepted that there was a well-founded fear of persecution, and the letter in coming to that conclusion cited developments in A in recent months and in particular involving the establishment of the interim authority on 22nd December last. In addition, the refusal letter relied on Article 33(2) of the 1951 Convention which allows the expulsion of a refugee who "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of [the] country".
9. The claimant, as he is undoubtedly entitled, has appealed against this refusal of asylum, and I have been told that the hearing before the special adjudicator is scheduled to take place in early April.
10. On 17th January of this year solicitors now acting for the claimant wrote to the Immigration and Nationality Directorate to this effect:

"Our client has been in detention on this basis [that is to say under paragraph 2(3)] since January 2001 with no prospect of any removal taking place. He remains in detention indefinitely, as currently the Secretary of State is not removing nationals to [A], and the resumption of removals does not appear to be imminent. Accordingly, our client remains in detention pending his removal, despite the fact the Secretary of State has no intention of enforcing this removal. It is our view that therefore Paragraph 2(3) cannot justify his continued detention."

11. That letter gave rise to a letter in reply dated 28th January, the same date as the letter giving the decision on the second application for asylum. The author of that letter is Simon Bentley, who has furnished a witness statement in this application. In that letter he states, amongst other things, as follows:

"It is not true that we have no intention of enforcing [the claimant's] removal. We are, in fact, actively exploring a number of options for removing him and other failed asylum seekers to [A] through neighbouring countries. The process entails discussions and negotiations with the countries concerned. We shall continue to review his case regularly, as we do in all detained cases, but we are satisfied that there are good prospects for carrying out his removal within a reasonable time period."

12. Then a little later on, dealing with the question of Article 5 of the European Convention on Human Rights, he says as follows:

"We believe that the nature of [the claimant's] criminal offence indicates that he is self-evidently a person of poor character. We have taken this into consideration in assessing whether or not he can be relied upon to abide by any restrictions placed on his release. We have also taken into consideration the deportation proceedings that are outstanding against him, as well as his own perceptions of the risk to his safety if he is returned to [A]. These factors, when taken together, lead us to believe that he would not abide by any restrictions placed on his release, or, more importantly, report for removal in the event of his asylum appeal being dismissed.

Accordingly, [the claimant] will for the time being remain in detention. We will continue to review his case regularly. We will also consider any further representations that you forward."

13. The current position is before me in the form of evidence. The claimant has made an additional statement in which in paragraph 5 he describes his current situation. He says that he was transferred to his current place in prison in January of this year. He says he is desperate to be released. He should not be in detention against his will. He does no English classes nor work. He is very depressed and cannot concentrate. He has applied to join the work and education programmes, but there are no places at the moment because there is a very long queue. He is on medication. He is under pressure and very upset. The medication helps him sleep, otherwise he does not sleep at night. He follows the same prison regime of convicted prisoners. He is kept in his cell 19½ hours out of 24. He also says that he has had no problems at the prison with anyone. There are annexed to his statement various medical notes which demonstrate that he is certainly under medical supervision for conditions relating to stress, anxiety and the like.
14. On the other side of the equation, Mr Bentley has in his statement set out what the up-to-date position is concerning removals to [A]. He says this in paragraphs 24 to 26 of the statement:

"24. There are currently no direct international flights between the United Kingdom and [A].

25. If the Claimant is prepared to return voluntarily to [A], arrangements can be made for his return via the International Office for Migration (`IOM'). Although the IOM has facilitated voluntary returns to [A] in the past, the IOM is not currently able to return people to [A]. However, there is a target of early summer for the resumption of such voluntary returns.

26. The British Government is planning negotiations with the neighbouring countries to facilitate enforced returns to [A]. The planning of those negotiations and the negotiations themselves are very sensitive and it may jeopardise the success of those negotiations to reveal more details at this stage. However, I can say that it is hoped that arrangements for enforced and voluntary removal will be in place by early summer."

15. That is the present factual position.
16. I have been referred to a number of leading cases concerning the powers of detention pending removal in various contexts. In respect of paragraph 2(3) of Schedule 3 to the 1971 Act, I have been referred to the decision of the Queen's Bench Division in the case of Re Hardial Singh [1983] Imm AR 198, the court presided over by Woolf J (as he then was). In that case the applicant had served sentences of imprisonment for burglary, following which he had been detained with a view to his deportation pursuant to a deportation order. The period of his detention under the paragraph 2(3) power was some five months between July 1983 and December 1983. Woolf J expressed himself as follows:

"Although the power which is given to the Secretary of State in paragraph 2 to detain certain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

17. In that particular case the outcome was a limited adjournment of the application, with a view to giving the Secretary of State the opportunity to show to the court that the applicant was due to be removed within a very short time indeed, but that if, within a matter of days, there was no such intimation to him, then he expressed the view that was a case where the applicant should be released.
18. In the case of Wasfi Suleman Mahmod, which was similarly a case of detention pursuant to paragraph 2(3) of Schedule 3, the applicant was someone who had been found to be in possession of opium when he sought leave to enter the United Kingdom as a visitor. He was sentenced to four years' imprisonment and recommended to be deported. He was detained in March 1993 and was still in detention in January 1994, some 10 months later, when the application for a writ of habeas corpus was heard.
19. Laws J granted his application and in so doing, in the [1995] Imm AR at page 313, said as follows:

"It is now 17 January 1994. This applicant has been in administrative detention for over 10 months. He is to be regarded, quite plainly, as having served his sentence for the drugs offence for which he was convicted. There is no question of these ten months' detention being attributable to that crime. In truth, he has been locked up while the Home Office have, it seems, been making unsuccessful efforts to persuade the German authorities to take him back. It goes without saying that the applicant has no power to influence what may be done at the international level about his case between this country and Germany. Equally, it goes without saying that he has no responsibility for any disagreement of view between this country and Germany, if there is a disagreement, as to what the obligations of the German authorities are. He has therefore been imprisoned while there have been discussions and negotiations over which he has no power of influence whatever between the two states."

20. In conclusion he stated, at page 314:

"In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has while nothing but fruitless negotiations have been carried on. It is not necessary for me to make a finding as to what would have been a reasonable period for this man's continued detention under paragraph 2(3) since I am entirely satisfied that whatever such a period has it has certainly now been exceeded.

This is a case where at least by now it must be apparent to the Secretary of State that he is not going to be able, as Woolf J put it, `to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period'."

21. Therefore, the applicant was entitled to be issued with a writ of habeas corpus and to his immediate release.
22. In the case of Tab Te Lam [1997] AC 97 PC, that was a case where applicants of Chinese ethnic origin were part of a large number of migrants from Vietnam, who had arrived without permission in Hong Kong by boat, having been refused refugee status, had been detained for several years pending removal from Hong Kong. They were therefore not persons who had committed any criminal offences and their detention was measured in years rather than months. At page 111 Lord Browne-Wilkinson, delivering the judgment of their Lordships, referred to the Hardial Singh principles with approval, and he put it in this way:

"In the absence of contrary indications in the statute which confers the power to detain `pending removal' their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect the removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time."

23. By way of illustration, and to some extent contrast, I was referred to cases concerning Article 5 of the European Convention on Human Rights. The first case was Chahal v United Kingdom [1996] 23 EHRR 413. The applicant was a Sikh separatist leader, who had been detained in custody for deportation purposes for a period of some 3½ years; the Home Secretary having decided that he was a threat to national security. He brought his claim against the United Kingdom, amongst other bases, alleging violation of Article 5 of the Convention. Article 5(1) provides that:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

f. the lawful arrest or detention ... of a person against whom action is being taken with a view to deportation ..."

24. At paragraph 112 and following of the decision of the court, the court said:

"... it is not in dispute that Mr Chahal has been detained `with a view to deportation' within the meaning of Article 5(1)(f). Article 5(1)(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5(1)(f) provides a different level of protection than Article 5(1)(c).

Indeed, all that is required under this provision is that `action is being taken with a view to deportation'. It is therefore immaterial, for the purposes of Article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law.

113. The Court recalls, however, that any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5(1)(f).

It is thus necessary to determine whether the duration of the deportation proceedings was excessive."

25. They then indicated the period of detention which, as I have indicated, was of the order of 3½ years. In paragraph 115 the court said:

"The Court has had regard to the length of time taken for the various decisions in the domestic proceedings.

As regards the decisions taken by the Secretary of State to refuse asylum, it does not consider that the periods were excessive, bearing in mind the detailed and careful consideration required for the applicant's request for political asylum and the opportunities afforded to the latter to make representations and submit information."

26. They then went on to deal with other applications and the way that they had been dealt with, and in paragraph 123 stated that:

"In conclusion, the Court recalls that Mr Chahal has undoubtedly been detained for a length of time which is bound to give rise to serious concern. However, in view of the exceptional circumstances of the case and the facts that the national authority have acted with due diligence throughout the deportation proceedings against him and that there were sufficient guarantees against the arbitrary deprivation of his liberty, this detention complied with the requirements of Article 5(1)(f)."

27. I was also referred to the decision of the Commission in the case of Ali v Switzerland [1998] 28 EHRR 304. Perhaps I need only cite a very short passage from the opinion of the Commission in that case, which is at paragraph 41, where, among other things, it says:

"The Commission considers that, where the authorities are aware, as here, that a deportation order cannot be enforced, detention under an order made at that specific time can no longer be considered to be detention of a person `against whom action is being taken with a view to deportation'."

28. In conclusion the Commission was of the opinion that the detention in that case was not justified under Article 5(1)(f).
29. Returning to the domestic courts, I was referred to R (on the application of Saadi and others) v Secretary of State for the Home Department [2001] EWHC Admin 607 and in the Court of Appeal [2001] EWCA Civ 1512. That was a case in which the lawfulness pursuant to Article 5(1) of detention of asylum seekers pending decisions on their claim was in issue. In paragraph 48 of the judgment of the Master of the Rolls he refers to the case of Chahal, and then in paragraph 54 he makes the following observation about that decision:

"First, it is inconsistent with any contention that the justification for detaining a person with a view to deportation is that this is necessary to prevent absconding or other misbehaviour. Secondly it demonstrates that detention with a view to deportation can only be justified if the deportation proceedings are pursued with due diligence. Thirdly it suggests that, even where deportation proceedings are proceeding with due diligence, if they continue for an exceptional length of time some justification for detention needs to be advanced if the detention is not to constitute arbitrary treatment."

30. Then in paragraph 66, dealing with the question of proportionality in terms of Article 5(1)(f), the Master of the Rolls says:

"We consider that the test of proportionality required by Article 5(1)(f) requires the Court simply to consider whether the process of considering an asylum application, or arranging a deportation, has gone on too long to justify the detention of the person concerned having regard to the conditions in which the person is detained and any special circumstances affecting him or her. Applying that test no disproportionality is demonstrated in this case."

31. Finally, I was referred to the decision of the House of Lords in the case of R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, and in particular to the now familiar passage in the speech of Lord Steyn at paragraph 27 where he says that:

"... the court should ask itself:

`whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'"

32. In this case it is the last of those three on which I am invited to focus. Later on in paragraph 27, dealing with the approach of a court exercising this supervisory jurisdiction, he says:

"But the intensity of review is somewhat greater under the proportionality approach [than it is under the traditional grounds of review]. ... First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights."

33. He goes on in paragraph 28 to say:

"The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, ... the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, `that the intensity of review in a public law case will depend on the subject matter in hand'.. That is so even in cases involving Convention rights. In law context is everything."

34. It seems to me that I have to ask myself a series of questions which are or may be different in respect of the Article 5(1)(f) challenge as in the challenge in respect of the application for an order of habeas corpus.
35. Dealing with the Article 5(1)(f) challenge the first question is: must the authorities be aware that a deportation order cannot be enforced? If that is the position, then the detention can no longer be considered to be that of a person against whom action is being taken with a view to deportation.
36. In my judgment, on the evidence before me I cannot find that the authorities must be aware that a deportation order cannot be enforced. The evidence of Mr Bentley is that the Secretary of State is, in good faith, seeking a way in order to achieve the deportation, and has no fixed view that it will not eventually be enforced.
37. The second question is: if it be the case that deportation proceedings are in progress, are they being prosecuted with due diligence given all the circumstances? In my judgment, again based on the evidence of Mr Bentley, there is no evidence to suggest that they are not being pursued with due diligence. It is certainly right to say that the second application for asylum seems, on the face of it, not to have been progressed with due diligence. But that is a different issue entirely. The evidence of Mr Bentley is to the effect that there is anxious consideration being given to how the difficult problem of achieving either voluntary or compulsory deportation to A may be effected.
38. The third question is: even if the deportation proceedings are being conducted with due diligence, are they continuing for an exceptional length of time; and if so, is there a justification, such as a fear of absconding or a fear of further offending? It does seem to me that, having regard to the various cases to which I have been referred, it may well be that the present exercise is continuing for an exceptional length of time; so that one has to look to see whether there are any such justifications as fear of absconding or fear of further offending which may prevent the breach of Article 5(1) which is being alleged.
39. In my judgment, it is clear as a matter of fact that there are such justifications. The letter of 28th January of this year set out those justifications in terms of the risk that this applicant would abscond if he were released. What perhaps makes this particular case a more serious case of fear of absconding than others might be is that it is clear that the type of offence for which he was sentenced is one where Parliament has seen fit to institute a statutory framework to protect the public from further offending upon release from prison, and in the applicant's case this continues indefinitely. Thus, the fear of absconding would not simply affect the fact that he would not be available to be deported, but inevitably would have a knock-on effect on the ability of the authorities, pursuant to the statutory scheme, to keep an eye on him with a view to avoiding the potential for his committing further offences of the type of which he was convicted and imprisoned.
40. The fourth question therefore is that posed by the Master of the Rolls in Saadi as to proportionality: has it gone on too long to justify detention having regard to all the circumstances, including his detention? There is no definitive period at the end of which in every case it may be said it has gone on too long. Each case is different, and the circumstances of each case must be considered. As I have indicated, in the case of Hardial Singh he was a burglar due for release. He had been detained administratively for five months due to a mix-up in documentation, where it seems that the Home Office was principally at fault. It is not entirely surprising that in that case the period which he had been kept in detention was regarded as being on the cusp of what was too long; so that the Home Office were given a very short further period of time, either to effect the deportation or to have him released.
41. In the case of Mahmod, that was a case where the offence was possession of opium. The period was 10 months. There was apparently simply an impasse between the German and British governments, and the impression one has is that any objections or attempts by the British government to persuade the Germans to change their view really amounted to no more than the exercise of a ritual attempt, where all hope had effectively gone.
42. In the case of Lam, as I have indicated, they had been detained for several years. No offence at all had been committed, and there was obviously no difficulty with the Privy Council concluding that that matter had gone on far too long. By way contrast, in the case of Chahal, a period of administrative detention for well over three years, where the concern was a threat to national security, was found by the European Court of Human Rights not to be a case where the matter had gone on for too long so as to amount to a breach of Article 5(1).
43. In the present case the period of administrative detention is now 13 months. The nominal sentence is yet to expire. It does not expire until August 2002. Although the claimant is entitled to be released at the halfway stage, had he been released he would have remained liable for recall for all the part of that period of 18 months in the event that he either failed to comply with his supervision or committed any further offence. Furthermore, as I have indicated, the statutory scheme envisages that he may be a continuing long-term risk to society, as a result of which there are these obligations to register.
44. Having regard to the fear of the Secretary of State that he may simply abscond and therefore thwart both the deportation regime and the Sex Offenders Register regime, at present it is my judgment that the matter has not gone on too long to justify continuing detention. It seems to me that the minimum period at which that may arise would be measured at the end of his nominal sentence. But of course I am not invited in this case to make any such judgment. Suffice it to say that thus far the case has not gone on too long.
45. Therefore, in my judgment, there is no breach of Article 5(1)(f).
46. The position as far as paragraph 2(3) of Schedule 3 is concerned is, or may be, different. The test formulated by the Divisional Court in Hardial Singh is: must it be apparent to the Secretary of State that he is not going to be able to operate machinery provided for removing persons within a reasonable time? The Secretary of State is not, it seems to me, in a position to say that they will be able to remove him within any particular period of time, let alone one that is reasonable.
47. It seems to me also that Mr Bentley in his letter of 28th January probably somewhat overstated the position in saying that there was a reasonable prospect that he would be removed within a reasonable time. What Mr Bentley is saying is that the Secretary of State is working to try to effect a mechanism by which the machinery for removal may be operated, and hopes that by early summer that will be in place. I accept that these efforts are bona fide and substantive, and not merely a ritual going through the motions. There is no expectation nor is there a reasonable prospect, but there is a hope. It seems to me that standing those findings of fact, it is not open to me to say that presently it must be apparent to the Secretary of State that he is not going to be able to operate the machinery provided within a reasonable time. The Secretary of State seems, on the face of it, to be stating that a reasonable time is the summer of this year. There is a broad concurrence between that view and the hesitant view I have expressed that the end of his nominal sentence may constitute some kind of watershed.
48. Therefore, the position is that as of today, in my view the continuing administrative detention is not unlawful. It does fall within paragraph 2(3) of Schedule 3, but the position is one which must be both anxiously monitored by all those concerned and the Secretary of State must be put on notice that if by the summer those hopes have not borne some sort of fruit, then it may be that at that stage a court would be persuaded to say that the whole matter has gone on for so long that administrative detention can no longer be stated to be lawful. As I say, that is, perhaps, for another court on another occasion.
49. Suffice to it say that as of today, these applications both fail.

MR WILLIAMS: My Lord, I appear for the claimant today. I apologise on Miss Chapman's behalf for not being able here today. I presume she probably explained the position to you yesterday.

JUDGE WILKIE: Maybe she did not know about the position then.

MR WILLIAMS: She has had to attend court in another matter. I note that your judgment is predicated on findings of fact, but like Mr De Mello in the last case I nonetheless audaciously ask that the claimant be granted leave to appeal to the Court of Appeal.

JUDGE WILKIE: Yes.

MR WILLIAMS: The reason I ask is that the question of proportionality----

JUDGE WILKIE: Yes.

MR WILLIAMS: ----is a matter of law for the courts to consider, and in this case it is a continuing decision to detain and therefore we have a moving picture and circumstances could change. The reasonableness of the Secretary of State's decision to continue detention is founded on, I would say speculation, that things will improve in the summer and it may be in the very near future the situation may change, one will have a clearer picture of what is going to happen in the summer.

JUDGE WILKIE: That may mean that an appeal would be rather a waste of everyone's....

MR WILLIAMS: Yes, but on the other hand it may be that in justifying the continuing decision the Secretary of State may not be able to put what you view as a reasonable scenario yesterday.

JUDGE WILKIE: Yes.

MR WILLIAMS: So it on that basis really that I ask that there be leave to appeal.

I also submit that the case raises matters of public importance under Article 5. Saadi, as we know, was a case which considered a live case of refusal of entry of asylum seekers. This is a live case, and I believe possibly the first example, where somebody is being deported and the consideration of deportation in relation to Article 5 is under consideration.

For those matters, I would ask as a matter of public interest and public concern that leave to appeal be granted.

JUDGE WILKIE: Yes, thank you.

Mr Kovats, does the Secretary of State have any view one way or the other?

MR KOVATS: My Lord, we would respectfully submit that this case turns on its facts and that the applicable legal principles are not really in issue. We go on to submit that there is not a realistic prospect of the Court of Appeal differing from your Lordship's assessment on the facts.

JUDGE WILKIE: It is a bit hard for me to make that judgment.

MR KOVATS: My Lord, we would also respectfully endorse your Lordship's observation that an appeal now, given your Lordship's findings on the facts, might well be regarded as premature. It is perhaps overstating it a bit, but not appropriate.

JUDGE WILKIE: Yes. Yes, thank you.

Difficult though the case is, and it may be that it is the first where these principles are applied to this particular situation, it is not a case which, in my judgment, is anything other than a matter of fact and therefore I refuse leave to appeal.

MR WILLIAMS: My Lord, can I just deal with an ancillary matter? I understand that there was an anonymity order made yesterday.

JUDGE WILKIE: Yes.

MR WILLIAMS: And I am asked that the order does not disclose the nationality and the date of birth of the claimant.

JUDGE WILKIE: I have fiddled around with the draft and the order that I make is that in relation to these proceedings (1) the claimant is to be known only by his initial, I; (2) the claimant's full name, date of birth, place of residence and nationality may not be disclosed, except by the court or other agency acting in accordance with their statutory obligations. I have struck out (3), because I think you have already got that.

MR WILLIAMS: So be it.

JUDGE WILKIE: So that is the order that I make in those circumstances.

MR WILLIAMS: My client does also have the modern equivalent of legal aid, and may I have the usual order for taxation?

JUDGE WILKIE: Detailed assessment.

MR WILLIAMS: Yes, thank you.

My Lord, it has just been pointed out to me when you opened your judgment the nationality was disclosed within the judgment. I wonder if the press can be ordered not to record that.

JUDGE WILKIE: I have made my order and it prevents nationality.

MR WILLIAMS: Yes. I am grateful.