Tawonezwi v Secretary of State for the Home Department

In immigration detention cases, refusal to accept voluntary return and refusal of bail raise distinct questions. A detainee who might have been granted bail is not thereby falsely imprisoned. Refusal of bail explains why custody continues but does not itself establish unlawful detention. Refusal to return voluntarily is principally relevant to the risk of absconding if released. The legality of detention may nevertheless be affected if its duration becomes disproportionate to the reasons for holding the detainee. Where removal is suspended, there is no legitimate fear of persecution or human-rights violation, and detention continues only because the detainee will not accept voluntary repatriation, the proportionality threshold may not yet be crossed.

The appellant, a Zimbabwean national, entered the United Kingdom as a visitor in 2000, overstayed, and was later imprisoned for immigration-related offences involving a forged passport stamp and unlawful employment. His asylum claim was refused and his appeal failed. After release from prison, he remained in administrative detention pending removal, which was suspended because of the political situation in Zimbabwe.

He sought judicial review seeking release, a declaration that his detention was unlawful, and damages. Hodge J refused permission on the papers. A renewed application was rejected by Mr Michael Supperstone QC sitting as a Deputy High Court Judge. Keene LJ then refused permission to appeal. The renewed application before Sedley LJ concerned whether continued detention amounted to punishment for refusing voluntary return and whether its duration had become disproportionate.

Permission to appeal refused. Sedley LJ held that the application disclosed no arguable error of law and ordered that it be refused.

1. The grant of bail and the lawfulness of detention are distinct issues. A person who might have been, or arguably should have been, granted bail is not merely by that fact falsely imprisoned. Refusal of bail explains the continuation of detention but does not itself make the detention unlawful.
2. The majority decision in R (A) v SSHD [2007] EWCA Civ 804, comprising Longmore and Toulson LJJ, had placed central emphasis on the detainee being the author of his own misfortune where he refused voluntary return. Keene LJ adopted a different emphasis, treating refusal of voluntary return principally as relevant to the likelihood of absconding if the detainee were released on bail. Sedley LJ accepted that approach as cogent and held that it did not determine the lawfulness of detention.
3. The duration of detention may eventually become disproportionate to the reasons for it. The relevant question is whether the sheer length of detention has reached the point at which it outweighs those reasons. The difficulty is that the length of detention may itself result from the detainee’s refusal to accept voluntary removal.
4. Although the appellant had spent two years in administrative detention after his prison sentence, that point had not arguably been reached. He had no legitimate fear of persecution or violation of human rights on repatriation. His continued detention resulted only from his refusal to accept voluntary repatriation. It therefore remained lawful on the case advanced.

• Administrative Court: Hodge J refused permission to apply for judicial review on the papers. A renewed application was rejected in December 2007 by Mr Michael Supperstone QC sitting as a Deputy High Court Judge.
• Court of Appeal (Civil Division): Keene LJ refused permission to appeal on consideration of the papers. Sedley LJ refused the renewed application and ordered: application refused.