SK (Zimbabwe) v Secretary of State for the Home Department

The statutory power to detain a person pending deportation is controlled by the implied limits identified in Hardial Singh. Detention must pursue deportation, remain reasonable in duration, and be supported by reasonable diligence and a continuing prospect of removal.

Failure to follow detention-review rules or administrative policy does not, without more, make detention unlawful or constitute false imprisonment. The Secretary of State must nevertheless avoid arbitrary detention, keep the justification under review, and be able to prove compliance with the substantive limits when challenged. The claimant’s detention complied with those limits, so the Secretary of State’s appeal succeeded.

A Zimbabwean national whose criminal sentence had ended was detained pending deportation under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. He challenged his detention, alleging breach of the Hardial Singh principles and failures to conduct reviews and provide written reasons under the Detention Centre Rules 2001 and the Operations Enforcement Manual.

Munby J granted a declaration that detention had been unlawful for specified periods, but held that the current detention was lawful and refused an order for release. The Secretary of State appealed against the declaration. The claimant cross-appealed against the refusal of release, but that appeal became moot after bail was granted. The central issue was whether failures to conduct the required reviews themselves invalidated detention.

Appeal allowed. Laws LJ gave the leading judgment. Keene LJ agreed with some hesitation, and Longmore LJ agreed.

1. The power in paragraph 2(2) of Schedule 3 to the Immigration Act 1971 is subject to the implied Hardial Singh limits. The Secretary of State must intend to deport and use detention only for that purpose. Detention may continue only for a reasonable period. It should not continue once it becomes apparent that removal cannot be achieved within that period, and the Secretary of State must act with reasonable diligence and expedition. The judge’s findings established compliance with those principles.
2. Compliance with the Detention Centre Rules 2001 and the Operations Enforcement Manual is not a condition precedent to lawful detention under paragraph 2(2). The court distinguished Roberts [1999] 1 WLR 662, where an express provision of the Police and Criminal Evidence Act 1984 made compliance with the statutory review regime a condition of lawful police detention. Keene LJ emphasised that rule 9 required both monthly reconsideration and monthly written reasons, but agreed that breach did not itself invalidate detention because the Rules were made for the management and administration of detention centres.
3. The common law and the ECHR prohibit arbitrary detention. Judicial review and the requirements of ECHR Article 5 provide judicial control. The Secretary of State must be able to demonstrate by evidence that the Hardial Singh principles have been and are being fulfilled, but the law does not prescribe a particular internal monitoring system or form of evidence. A regular review system remains an effective practical method and compliance with the Rules and Manual remains a public-law duty. The reasoning in Winterwerp v Netherlands (1979) 2 EHRR 387 and Munjaz [2006] 2 AC 148 was applied by analogy.
4. Although the Secretary of State’s failures were serious, the evidence showed that the claimant was lawfully detained throughout under the Hardial Singh principles. The failures therefore did not make the detention false imprisonment. They might support other public-law remedies, but no such additional remedy was before the court.
5. The Secretary of State’s appeal against the declaration was allowed. The claimant’s new challenge based on later-disclosed detention instructions was remitted to the High Court by agreement. The cross-appeal concerning release was moot.

• Court of Appeal (Civil Division): By judgment reported at [2008] EWCA Civ 1204, allowed the Secretary of State’s appeal against the declaration of unlawful detention and remitted the newly raised issue to the High Court.
• Administrative Court, Queen’s Bench Division: Munby J, on 25 January 2008, granted a declaration that the claimant had been unlawfully detained for specified periods, but held that his then-current detention was lawful and refused release.