Vovk & Anor, R (on the application of) v Secretary of State for the Home Department

A recommendation for deportation does not create a presumption that detention will continue after completion of a custodial sentence. The Secretary of State must make a conscious decision whether to detain under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 at or before the point when detention begins, so far as reasonably practicable.

Detention pending deportation also requires an existing intention to deport. The Secretary of State must act with reasonable diligence and expedition. Detention for eight days without a decision was unlawful, and detention for six weeks was plainly too long.

Two linked judicial review claims concerned detention after the claimants had completed custodial sentences. Both had been recommended for deportation by criminal courts. The Secretary of State accepted that no decision to detain under immigration powers had been made before either claimant’s detention began.

The claimants relied on paragraph 2(1) of Schedule 3 to the Immigration Act 1971, the Secretary of State’s enforcement policy and Article 5 of the European Convention on Human Rights. The central issue was whether detention before any decision by the Secretary of State was necessarily unlawful.

1. The claims succeeded. The court declared unlawful Mr Vovk’s detention from 8 November to 22 December 2005 and Mr Datta’s detention from 28 February to 8 March 2006.

2. Paragraph 2(1) of Schedule 3 to the Immigration Act 1971 did not authorise automatic detention after the end of a sentence. The declaration and order in Sedrati, Buitrago-Lopez and Anaghatu v Secretary of State for the Home Department [2001] EWHC Admin 418 had rejected that presumption. The Secretary of State’s enforcement manual required an official of the appropriate level to decide whether immigration detention should follow imprisonment.

3. The Hardial Singh principles, conveniently set out in R (I) v Secretary of State for the Home Department [2003] INLR 196, applied. The Secretary of State had to intend to deport, use detention only for that purpose, detain for no longer than was reasonable, and act with reasonable diligence and expedition.

4. When the claimants’ sentences ended, no decision had been made and there was no intention to deport. The detention therefore failed the first principle. The Secretary of State’s argument would have reintroduced the presumption rejected in Sedrati. The admitted breach of Chapter 38 of the enforcement manual reinforced that conclusion.

5. Practical considerations might matter where the period between sentence and detention was minimal, because the order in Sedrati referred to what was reasonably practicable. They could not justify eight days in Mr Datta’s circumstances or six weeks in Mr Vovk’s. No issue was decided as to whether later decisions would independently have justified detention.

The claimants were entitled to declarations and costs subject to legal aid assessment. Damages in Mr Vovk’s case were adjourned for agreement or further consideration.