The Home Office has been in the news for what one judge described as a “prima facie case of contempt of court.” Officials are reported to have breached multiple orders for the return of asylum seeker Samim Bigzad from Afghanistan to the United Kingdom. Ultimately, though, in legal terms it is Home Secretary Amber Rudd who is responsible for those actions. It is unlikely she personally sanctioned breach of the order. Can she really be in contempt of court for the actions of one of her officials?

At the time of writing there has been no finding of contempt of court in the case of Samim Bigzad. However, clear and deliberate breach of an order of a High Court judge would normally be considered contempt of court, and according to press reports that is what has occurred.

The case of Samim Bigzad

According to press reports, Bigzad was removed to Afghanistan on 12 September 2017 in breach of an order by Mr Justice Morris. Bigzad had already left the UK at the time the order was made but was due to change aircraft in Istanbul. The Home Office is said to have knowingly and deliberately put Bigzad on the plane from Istanbul to Kabul in direct defiance of the judge’s order.

Happy to announce that our client Samim Bagzid is to be returned to the UK after court injunction. @JamieB2712 @SKBarrister . #savesamim

— DuncanLewisPublicLaw (@DLPublicLaw) September 12, 2017

#samimbigzad confirms that despite Judge Order, he is in Kabul. This is very concerning. We are taking immediate steps and will update soon

— DuncanLewisPublicLaw (@DLPublicLaw) September 13, 2017

This appears to be a breach of Home Office policy as well as an apparent contempt of court. Where an injunction is made by a judge to prevent removal but “it proves too late to halt the removal” and “removal has already taken place”, Home Office policy in Chapter 60 of the Enforcement Instructions and Guidance instructs officials

{14.3} If you are able to quickly trace or contact the person (perhaps through their legal representatives in the UK or, via DEPMU [Detainee Escorting and Population Management Unit], any escorting officers who may be escorting them), you must make every effort to assist their return to the UK

However, the policy goes on to set out a different approach where removal “has already taken place.” These two situations seem to be a difference without distinction given that removal has already taken place in both situations. Perhaps the first policy is intended to apply where the injunction is made before removal but removal occurs anyway and the second policy is intended to apply where, as in the Bigzad case, the injunction is made after removal.

Be that as it may, in the latter situation the policy states:

{14.4} The case must be referred to LOE [Litigation Operations (Enforcement)] to review the full facts of the case to consider whether the order has been obtained without any merit. If LOE believe this to be the case they can apply for the Court order to be discharged, bearing in mind that a decision to make such an application must be made quickly and in consultation with Home Office Legal Advisers and GLD [Government Legal Department]. Note that you must continue to try to facilitate the individual’s return whilst this application is being processed.

Where, despite all efforts made, it is not possible to return the individual to the UK, LOE must approach the court again to explain the full extent of steps taken, why return is not possible and to ask that the order is discharged. Any decision not to pursue return must be taken at SCS level.

The problem here may be that the policy does not seem to allow for consideration by officials of what the terms of the injunction might be. Where a judge is aware that removal has taken place and explicitly orders return, it is clearly not the proper course to consider whether the judge’s order has “merit” or not. As we will see later, this is what landed Kenneth Baker in hot water in 1991.

In any event, the Home Office policy goes on to instruct officials that the Home Secretary must be informed immediately:

Immediately following the removal an urgent submission must be sent, via the relevant Director General, to the Home Secretary. This must contain a chronology of events, detailing the efforts made to halt the removal and why these were unsuccessful.

In the first situation (injunction then removal) the report to the Home Secretary must include “details of any efforts being made to facilitate the person’s return” but in the second situation (removal then injunction) the report should intead contain “details of any legal advice received from GLD.”

It would be fascinating to see what legal advice was sought or given by the Government Legal Department, recently criticised by the President of the Upper Tribunal Immigration and Asylum Chamber for their “trench warfare” approach to immigration litigation.

Returning to the sequence of events in the Bigzad case, a further court order is reported to have been made the next day by Mr Justice Jay, who described the breach of the first order as “prima facie contempt of court”. The Home Office was ordered to “take all steps available to procure [Mr Bigzad’s] immediate return to the United Kingdom” and given until 4pm the next day to explain its actions.

High Court again orders SSHD to rtn #SamimBigzad on next available flight and explain herself. We are pursuing #contemptofcourt #savesamim

— DuncanLewisPublicLaw (@DLPublicLaw) September 13, 2017

Alarm bells should have been ringing by now but it seems that second order was also breached and the Home Office sought to have the earlier orders overturned. That attempt failed and a third order was then made by Mrs Justice Lang requiring the Home Office to secure Bigzad’s “immediate return to the United Kingdom from Kabul” at any cost. It sounds like the Home Office did try to dispute the “merits” of the earlier orders as Mrs Justice Lang is reported as saying:

Whatever the merits of the claim for a judicial review, and even if Justice Morris erred in granting a stay on removal, [Mr Bigzad] ought not have been removed from the UK in breach of an order of a high court judge and so he must returned.

Extraordinary Developments: App by SSHD to set aside Court Orders, a third judge orders her to return #SamimBigzad immediately #savesamim

— DuncanLewisPublicLaw (@DLPublicLaw) September 14, 2017

At last, late on Friday, the Home Office notified Bigzad’s lawyers that he would be returned to the UK.

But that was not the end, in fact. The Home Office then attempted urgently to appeal to the Court of Appeal, with a four hour hearing taking place on a Saturday. The attempt failed.

4 hr hearing at the court of appeal: @ukhomeoffice application is refused (again). #SamimBigzad will be in UK tom@SKBarrister @JamieB2712

— DuncanLewisPublicLaw (@DLPublicLaw) September 16, 2017

At the time of writing it was reported that Bigzad was expected to return to the UK on Sunday.

Samim has confirmed that he is now in Istanbul and will be flown to the UK this evening. We are delighted to have him back safe #savesamim

— DuncanLewisPublicLaw (@DLPublicLaw) September 17, 2017

Samim finally landed at 22.45 and emerged at 23.30. #nailbiter #welcomebacksamim #savesamim pic.twitter.com/gFzMVSX4xT

— DuncanLewisPublicLaw (@DLPublicLaw) September 17, 2017

Once Bigzad is back in the UK there will no doubt be at least one further hearing for the Home Office to explain itself. This may well be what is called a committal hearing. A committal hearing is a serious matter as the listing information required by the Practice Direction makes very plain:

FOR HEARING IN OPEN COURT
Application by (full name of applicant) for
the Committal to prison of
(full name of the person alleged to be in contempt)

At this committal hearing the person facing committal attends court personally to explain him or herself to the judge. Amber Rudd would probably have to attend court in person but it is unlikely she would actually be committed to prison. Two previous Home Secretaries have managed to avoid this fate, after all.

Not the first example of contempt of court by a Home Secretary

Because in legal terms it is the Secretary of State for the Home Department who is charged with most immigration powers and it is through her legal person that these powers are exercised, it is not the Home Office as an institution or the directly responsible junior official who is held responsible in law when a court order is breached. Rather, it is the Secretary of State for the Home Department personally.

The Secretary of State for the Home Department is also known as the Home Secretary and is currently Amber Rudd.

There have been previous examples of Home Secretaries being found to be guilty of contempt of court.

Theresa May was found to be in contempt for deliberately and in breach of an undertaking to release a prisoner in immigration detention in 2012 (The Telegraph). The finding of contempt of court was made by HHJ Cotter on that occasion but the contempt judgment does not seem to be publicly available. As far as it is possible to tell, Theresa May was not personally involved in the decision to breach the undertaking.

The original judgment with the finding of unlawful detention is apparently this one: R (on the application ofLamari) v Secretary of State for the Home Department [2012] EWHC 1630 (Admin).

The only other example of a Minister of the Crown being found guilty of contempt of court was Kenneth Baker. At that time Home Secretary, in 1991 he followed incorrect legal advice he had been given and personally sanctioned continued non-compliance with an order by a judge to return an asylum seeker to the UK. With legendary but now shuttererd firm Winstanley Burgess acting, the resulting legal proceedings went all the way to the House of Lords.

In M v Home Office [1994] 1 AC 377 Lord Woolf gave the (rather lengthy) leading judgment. He overturned the judgment of the Court of Appeal and held that Kenneth Baker was personally guilty of contempt of court. The full sequence of events and the contents of the legal advice was all set out in the judgment and Mr Baker ended up swearing an affidavit in which he said that if he had been wrong it was a “matter of sincere regret to me and I unreservedly apologise to the Court.”

It was the first time that any Minister of the Crown had been found guilty of contempt of court. No punishment was imposed, however, and Baker did not find himself clapped in irons.

Lord Templeman’s short concurring judgment sums up the constitutional issues succinctly:

My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.

Will Amber Rudd also be found guilty of contempt of court? Was she, in accordance with Home Office policy, immediately informed of the removal in breach of the court order? What legal advice did she receive? Will she be imprisoned or fined? Not likely, but in theory it is possible.

You can see for yourself how Amber Rudd responded when questioned about this by the BBC’s Andrew Marr. As he rightly said, being found in contempt of court would be very serious indeed for a private citizen. Is it a serious matter for a Government Minister?