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

The statutory power to detain an immigration detainee pending removal is broad, but it may be used only for the purpose of removal and for no longer than is reasonably necessary. The court is the primary decision-maker on the legal boundaries and reasonableness of administrative detention. A detention policy must guide, but must not automatically determine, the outcome. It must be applied flexibly to the individual circumstances. Judicial review proceedings ordinarily make removal non-imminent under the relevant policy, but the policy permits exceptions where the proceedings have substantially been dealt with and expedition may realistically be sought.

The claimant, a citizen of the Democratic Republic of Congo, sought judicial review of his detention from 8 to 30 November 2004. He had previously been granted bail to enable him to submit further representations in support of an asylum claim. He was detained again before those representations had been determined and after removal directions had been set and cancelled.

Judicial review proceedings were commenced on 24 November 2004. The claimant argued that his detention was unlawful because removal was no longer imminent and because the defendant’s policy ordinarily required release where proceedings challenging removal had been instituted. The central issues were whether detention remained authorised and reasonable before and after the commencement of the proceedings.

1. Outcome. The application for judicial review was dismissed.

2. The power under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 existed because the defendant’s purpose in detaining the claimant was removal and there remained some prospect of achieving it. The power did not depend on a risk of absconding or other misconduct.

3. The exercise of the power was nevertheless subject to the limits identified in R v Governor of Durham Prison, ex parte Hardial Singh: detention could be used only for the purpose of removal and only for the period reasonably necessary for that purpose. The court, rather than the Secretary of State, was the primary decision-maker on those legal boundaries. Reasonableness depended on the circumstances, including the prospect and timing of removal and, where relevant, the risk of absconding, refusal of voluntary repatriation and risk of offending.

4. Between 8 and 24 November, the defendant was entitled to conclude that a reasonable time had been allowed for further representations after bail had been granted and that circumstances had changed. The later receipt of the representations did not make detention unlawful. The defendant could reasonably regard removal as still imminent because of the claimant’s immigration history, previous removal attempts and the anticipated consideration of the representations.

5. After judicial review proceedings were commenced, the relevant policy was to release a detainee on temporary admission normally, rather than invariably. The policy had to be considered but could not automatically determine the result. The proceedings had substantially been addressed by the refusal of the fresh claim, leaving principally a request for time to consider a challenge. It was therefore reasonable to defer the release decision until the amended grounds were received so that the possibility of expedition could be assessed.

The judgment is a first-instance decision of the Administrative Court. The judgment records an earlier successful appeal concerning the refusal to recognise a fresh asylum claim in WM v Secretary of State for the Home Department [2006] EWCA Civ 1495, but that decision was not the subject of this claim.