HXA v The Home Office

The statutory power to detain a person pending deportation is confined to purposes properly connected with making and effecting removal from the United Kingdom. It cannot be used to investigate or secure the person’s enforced transfer into detention in the receiving country.

Before deciding to deport and detain, the Secretary of State must consider whether removal can lawfully be effected compatibly with Convention rights and whether there is a realistic prospect of achieving that within a reasonable period. The court is the primary decision-maker on the reasonableness and legal limits of administrative detention. Failure to investigate those matters with due diligence may render detention unlawful.

The claimant, an Iraqi national, was detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 after the Secretary of State decided to make a deportation order on national-security grounds. He claimed damages and declaratory relief for false imprisonment and breach of Article 5 ECHR.

The claimant’s appeal to SIAC against the deportation decision remained pending. During the detention, the Secretary of State investigated whether the claimant could be returned to Iraq directly into Iraqi, United States or United Kingdom custody. The deportation decision was withdrawn and the claimant released after those options proved unavailable. The central issues were whether the detention was used for an unauthorised purpose, whether the initial decision to detain was lawfully made, and whether the detention was prolonged contrary to the Hardial Singh principles.

1. Outcome. The whole period of detention was unlawful. The claimant succeeded on liability. The court directed that submissions be made on the consequential order.
2. Purpose of deportation. A deportation order under sections 3(5) and 5(1) of the Immigration Act 1971 is directed to removal from, and exclusion from, the United Kingdom. It does not authorise the enforced surrender or transfer of the deportee into custody in the receiving country. That would resemble extradition and requires a separate legal basis.
3. Use of detention after June 2005. From at least June 2005, the detention was used to investigate and arrange the claimant’s return into detention in Iraq, whether by Iraqi, United States or United Kingdom authorities. That purpose was outside the statutory purpose of detention pending the making of a deportation order. It therefore breached the first Hardial Singh principle. The position differed from an ordinary deportation where detention by the receiving state arose on its own initiative.
4. Initial decision. Before deciding to make the deportation order and detain the claimant, the Secretary of State was required to consider all relevant matters, including whether removal would comply with Convention rights and whether necessary safeguards or assurances could realistically be obtained within a reasonable period. It was unnecessary for all arrangements to be completed at that stage, but the issue had to be properly addressed. It was not.
5. Hardial Singh. The power to detain exists only while removal remains a real possibility, but its exercise must remain reasonable and the Secretary of State must act with due diligence and expedition. The court, rather than the executive, determines the legal boundaries of administrative detention and whether detention was reasonable. The pending SIAC appeal and bail decisions did not determine the legality of detention.
6. Alternative ground. Even if detention for investigating removal arrangements had been permissible, the Secretary of State failed to act with due diligence during the first five months. That failure unnecessarily prolonged detention by about five months. The later pursuit of the remaining options was not, on the evidence, itself lacking in due diligence.

The judgment records that the claimant’s appeal against the deportation decision was pending before SIAC. This claim was determined at first instance by the High Court.