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

An immigration detention policy referring to imminent removal does not make imminence dependent on removal directions having been set. Cancellation of directions after judicial review proceedings are issued does not automatically make detention unlawful. A policy providing that temporary admission will normally be granted while removal proceedings are challenged allows exceptions, provided the decision-maker properly considers the individual circumstances and keeps detention under review. Short-term detention may remain lawful where the proceedings are abusive, removal is expected to occur promptly, and the policy has been conscientiously applied.

The claimant, an unsuccessful asylum seeker, challenged the lawfulness of two periods during which she and her children were detained pending removal. In each period, removal directions were cancelled after judicial review proceedings were lodged. The claimant argued that removal could not thereafter be imminent and that the Secretary of State’s policy required release.

The claim also alleged false imprisonment and breach of Article 5 ECHR. The fresh-claim challenge itself had not been pursued successfully, and the detention issue reached the Administrative Court following earlier refusals of permission and renewal of permission in the Court of Appeal. The central issue was whether the Secretary of State had misunderstood or misapplied her detention policy.

1. The claim was dismissed. The detention of the claimant and her family during both periods was lawful and consistent with the Secretary of State’s policy.
2. The policy did not equate “removal from the United Kingdom is imminent” with “removal directions have been set”. Removal may remain imminent where directions have been cancelled, if the intention is to remove in the very near future and genuine efforts are being made to do so. Cancellation of directions therefore did not automatically require release.
3. The policy described in R (on the application of Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768 stated that an immigrant would normally be granted temporary admission while proceedings challenging removal were pending. The word “normally” preserved circumstances in which release would not be appropriate.
4. The court applied the qualification recognised in R (on the application of WM) v Secretary of State for the Home Department [2007] EWHC 2562 (Admin): the policy was not invariably to grant temporary admission, and it could be applied flexibly according to the particular circumstances.
5. For the first period, the Secretary of State had consciously reviewed detention after the proceedings were lodged. The unparticularised claim was reasonably treated with scepticism, particularly as it was later found to be an abuse of process. The policy had neither been ignored nor misapplied.
6. For the second period, the decision-maker reviewed detention while expecting the judicial review application to be dealt with promptly. Release was arranged when no timetable for the court’s consideration was available. The claimant’s recent abusive proceedings and late fresh representations provided ample justification for continuing detention for the short periods concerned.

The judgment records that permission was refused by Goldring J and Bean J. A renewed application to the Court of Appeal resulted in limited permission from Maurice Kay LJ on the detention issue. The Administrative Court then dismissed the judicial review claim.