Nadarajah v Secretary of State for the Home Department

Detention pending immigration removal must comply with both the statutory power and the Secretary of State’s published policy. A policy may rationally treat removal as imminent despite a mere intimation that suspensive proceedings will be brought, but that criterion cannot lawfully be relied on if it has not been made adequately accessible and its consequences are not foreseeable.

Article 5(1)(f) of the European Convention does not require detention to be necessary for removal or subject to a general proportionality balance. It does require compliance with domestic law and protection against arbitrariness. An unpublished detention policy failed those requirements.

Two conjoined appeals concerned Tamil asylum seekers detained by the Secretary of State on the stated basis that their removal was imminent. In Nadarajah v Secretary of State for the Home Department, Stanley Burnton J declared the detention unlawful on 3 December 2002. In the related proceedings concerning Amirthanathan, Mr Rabinder Singh QC, sitting as a deputy High Court judge, made the same declaration on 2 May 2003.

Both men’s representatives had indicated an intention to pursue a suspensive challenge to removal. The Secretary of State appealed, contending that the published detention policy permitted detention before proceedings or an appeal had formally commenced. The central issue was whether the detentions were lawful under that policy and section 6(1) of the Human Rights Act 1998, read with Article 5 of the European Convention.

1. The Secretary of State’s appeals were dismissed. Both detentions were unlawful. The claims were transferred to the Queen’s Bench Division for damages to be assessed.
2. The statutory power in paragraph 16(2) of Schedule 2 to the Immigration Act 1971 was supplemented by the Secretary of State’s published detention policy, which he was obliged to follow. The policy created a presumption in favour of temporary admission or release. Where removal was imminent, detention also required an additional rational reason, commonly a justified concern that the individual would not provide the co-operation needed for orderly removal.
3. The court held that it was neither arbitrary nor irrational for the policy to disregard a mere intimation that proceedings challenging removal would be commenced. Treating removal as no longer imminent on every such intimation would invite tactical use of threats of litigation. Requiring immigration officers to assess each proposed claim would be burdensome and uncertain. Prompt commencement of proceedings was itself a legitimate objective.
4. That element of the policy had not, however, been adequately published. The published material showed that removal would not normally be treated as imminent once proceedings had begun, but did not disclose that credible notice of intended proceedings would be ignored. The men and their solicitors could therefore reasonably expect that detention on the basis of imminent removal would not occur. The consequences of failing to institute proceedings immediately were not foreseeable.
5. Article 5(1)(f) did not impose a general necessity or proportionality test requiring the state to show that detention was needed to achieve removal. It required action with a view to deportation, compliance with domestic substantive and procedural law, and protection against arbitrariness. Article 5 lawfulness also required the applicable legal rules to be accessible. The unpublished policy could not render the detentions lawful.
6. N’s intended judicial review was genuine and viable. A’s detention was in substance intended to secure a documentation interview before his anticipated appeal. Neither basis accorded with the policy as made public. The declarations of unlawfulness were therefore upheld.

• Court of Appeal (Civil Division) — In Nadarajah v Secretary of State for the Home Department, [2003] EWCA Civ 1768, dismissed the Secretary of State’s appeals and upheld declarations that both detentions were unlawful.
• High Court, Queen’s Bench Division — Stanley Burnton J declared Nadarajah’s detention unlawful on 3 December 2002. Mr Rabinder Singh QC, sitting as a deputy High Court judge, declared Amirthanathan’s detention unlawful on 2 May 2003.