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

Detention under the Immigration Act 1971 must be exercised for the purpose of removal and within a reasonable period. The Secretary of State may adopt a policy that restricts the statutory power, and detention contrary to that policy is unlawful. Under the applicable policy, removal was no longer imminent once proceedings challenging removal had been commenced. A detainee’s right to challenge the lawfulness of detention under Article 5(4) of the European Convention on Human Rights is independent of the right to seek bail. Detention of families with young children should be used only to effect removal and normally for no more than a few days.

The claimants, an Ivorian mother and her young daughter, challenged their detention from 10 June 2002 until release on bail on 23 December 2002. Other challenges concerning a fresh asylum claim, human rights claims and the daughter’s relationship with her French father were resolved or accepted by the Secretary of State. The remaining issue was whether the detention was unlawful.

The court considered the effect of the Secretary of State’s published detention policy, including its provisions concerning imminent removal, judicial review and families. The relevant guidance from R (Nadarajah) v Secretary of State for the Home Department was given in [2003] EWHC Civ 1768.

1. The statutory power to detain illegal entrants under paragraphs 9, 10A and 16(2) of the Immigration Act 1971 was not dependent on a risk of absconding or other misconduct. Detention had to be for the purpose of removal, and had to be exercised reasonably in the sense that removal could be achieved within a reasonable time. The court relied on R v Governor of Durham Prison, ex parte Singh, [1994] 1 W.L.R. 704, Tan Te Lam v Superintendent of Tai A Chau Detention Centre, [1997] A.C. 97, and R (Saadi) v Secretary of State for the Home Department, [2002] 4 All E.R. 785.

2. The Secretary of State’s published policy limited the statutory power. It created a presumption in favour of temporary admission or release, required reasonable alternatives to detention to be considered, and required detention to remain under close review. Applying R (Nadarajah) v Secretary of State for the Home Department, the policy meant that removal was not imminent once proceedings challenging removal had been initiated. The claimants’ judicial review application was lodged on 24 June 2002. Continued detention thereafter was contrary to the policy and unlawful.

3. The detention of a family with a very young child strengthened the requirement that detention be kept as short as possible. The policy permitted family detention only to effect removal and contemplated detention normally lasting no more than a few days. Detention for more than six months was inconsistent with that policy.

4. A bail application was not an adequate alternative to judicial review for determining the lawfulness of detention. An adjudicator deciding bail had no power to determine that issue. Article 5(4) of the European Convention on Human Rights required an independent right to proceedings determining lawfulness, as confirmed by Zamir v United Kingdom, (1983) 40 D.R. 42.

5. The initial detention from 10 June to 24 June 2002 was not declared unlawful, although the court considered that it should not have been used as a matter of discretion. The court declared that detention from 24 June until release on 23 December 2002 was unlawful. Costs were awarded, with damages to be assessed later.