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

Detention pending deportation is not automatic merely because a custodial sentence has ended. The Secretary of State must identify and communicate the grounds for continued detention, including its essential legal and factual basis. The detainee need not receive detailed particulars, but must understand why detention is claimed to be justified. On judicial review, failure to give reasons makes detention unlawful where the omission is material; it may be immaterial where the grounds are obvious and bail could not realistically be contemplated.

The claimant, a Jamaican national, remained detained after completing the custodial part of a 30-month sentence. A deportation decision had been made, but the claimant had appealed and the Crown Court had made no recommendation for deportation. Although continued detention was authorised, reasons and bail information were not provided until 9 May 2005.

The claimant sought judicial review of detention between 11 March and 9 May. The issues were whether the statutory power created a presumption in favour of detention and whether failure to communicate the reasons affected its lawfulness.

1. Claim succeeded. Detention between 11 March and 9 May 2005 was declared unlawful because the claimant had not been given the reasons for detention.
2. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 authorised detention pending deportation but created no presumption in favour of detention after completion of imprisonment. The court followed R (on the application of) Sedrati v Secretary of State for the Home Department [2001] EWHC Admin 418.
3. A detainee must be told the essential legal and factual grounds for detention in simple, understandable language. Detailed particulars are unnecessary. The court applied the principles in Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 315, with the common-law approach informed by Christie v Leachinsky [1947] AC 573 and Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157.
4. Knowledge of the claimant’s immigration status, conviction, completed sentence and intended deportation did not necessarily disclose the reason for detention.
5. The failure was material in the circumstances, including the claimant’s ties in the United Kingdom and the subsequent grant of bail. R (on the application of) Saadi v Secretary of State for the Home Department [2002] 1 WLR 3131 was distinguished.
6. The matter was retained in the Administrative Court, with liberty to apply within 56 days concerning damages. Costs were ordered against the Secretary of State.

First-instance judicial review. Permission to appeal was refused, leaving the Court of Appeal to decide whether to entertain an appeal.