Amirthanathan, R (on the application of) v Secretary of State for the Home Department

Detention pending removal must comply with domestic law, the Secretary of State’s published detention policy and Article 5 of the Convention. Where an individual has indicated an intention to appeal a refusal of a human-rights claim, detention during the short period before formal lodging of the appeal may be contrary to a policy requiring detention to be used sparingly and only where removal is imminent. Article 5(1)(f) does not impose a test of necessity, but arbitrariness is not confined to irrationality. Proportionality remains relevant, particularly where personal liberty and the practical effectiveness of Convention rights are engaged.

The claimant sought judicial review of his detention from 6 November to 15 November 2002. His human-rights claim had been refused, but he had indicated through his solicitors that he intended to appeal and subsequently lodged a formal appeal under section 65 of the Immigration and Asylum Act 1999. The Secretary of State detained him to facilitate removal and the obtaining of travel documentation.

The issues were whether the detention was unlawful under domestic public law because it departed from the Secretary of State’s detention policy, and whether it was incompatible with Article 5 of the Convention.

1. The claim for judicial review was allowed. The claimant’s detention between 6 November and 15 November 2002 was declared unlawful. The Secretary of State was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed.

2. Under paragraph 16 of Schedule 2 to the Immigration Act 1971, the Secretary of State had a discretionary power to detain a person liable to removal. That power had to be exercised reasonably and in accordance with the Secretary of State’s published policy. The court endorsed the approach in Nadarajah v Secretary of State for the Home Department, namely that failure to follow the policy constituted an error of public law.

3. The policy created a presumption in favour of temporary admission or release. Detention was to be used sparingly and for the shortest period necessary. It was not an effective use of detention space where removal could practically be effected later, after rights of appeal had been exhausted. The word imminent could not be applied in an excessively formalistic way. The claimant’s informal notice that he intended to appeal materially affected the assessment, even before the formal appeal was lodged.

4. Once the formal appeal was lodged on 12 November, the claimant should in any event have been released, subject to any other relevant factors. The failure to release him immediately, or to bring forward the scheduled review, made the continued detention unlawful. The pending appeal also meant that an interview with the Sri Lankan authorities to facilitate a travel document was inappropriate.

5. Article 5(1)(f) required conformity with domestic law and protection against arbitrary detention. Following Saadi v Secretary of State for the Home Department, necessity was not the applicable test. However, arbitrariness could include disproportionate detention. The appropriate test was proportionality, not irrationality. The court was entitled to assess the relationship between the means chosen and the legitimate immigration-control aim with relatively little deference, because personal liberty is a fundamental right of high constitutional importance.

6. Applying that test, there was no reasonable relationship of proportionality between detention and the legitimate aim. Detention based only on the theoretical removability of the claimant during the short period before formal lodging of the appeal was excessively formalistic. It was therefore unlawful under section 6(1) of the Human Rights Act 1998.

First-instance judicial review proceedings. Permission was granted by Hooper J on 15 January 2003. Permission was initially refused on the papers by Sullivan J, but the renewed application was adjourned by Richards J on 13 November 2002. The substantive claim was then allowed by the Administrative Court.