MXL, R (on the application of) & Ors v Secretary of State for the Home Department

The power to detain pending deportation is subject to domestic and Convention limits. Detention must remain connected to the purpose of removal, last only for a reasonable period, and be exercised with reasonable diligence. A flawed decision to detain does not necessarily make detention unlawful where statutory authority and a presumption of detention exist. For damages, the unlawful factor must be the effective cause of detention, and detention will not be lawful if it is irrational or perverse.

Published detention policies form part of the safeguards against arbitrariness. Where detention affects young children, their welfare must be treated as a consideration of the first importance. Failure to apply relevant policy and to consider the children’s welfare made continued detention unlawful under domestic law and ECHR Articles 5 and 8.

The claimant, a Jamaican national, was detained after serving a sentence of imprisonment for conspiracy to steal and while automatic deportation proceedings and an Article 8 appeal were pending. Her two British children, aged six and two, remained in the care of another person.

She challenged her detention on the grounds that it had become excessive, that the decision-making process was flawed, that relevant detention policies had not been applied, and that detention breached Articles 5 and 8 of the ECHR. The central issues were whether the detention remained lawful pending the outstanding appeal and whether the later refusal to support release on stringent bail conditions was irrational, policy-inconsistent, or arbitrary.

1. Permission and first period of detention. Permission was refused on the challenge based solely on excessive duration. There were no obstacles to removal to Jamaica, and the outstanding appeal was the only reason removal had not occurred. Detention pending determination of an appeal was not, in these circumstances, an unreasonable period under the Hardial Singh principles.
2. Domestic law and damages. Under section 36(2) of the UK Borders Act 2007, the statutory scheme created a presumption of continued detention under Schedule 3 to the Immigration Act 1971, unless release was considered inappropriate. Following R (on the application of WL (Congo) and another) [2010] EWCA Civ 111, a procedurally flawed decision did not necessarily invalidate detention or establish false imprisonment. The claimant had to show that the breach of policy or duty was the effective cause of detention. A decision that no reasonable Secretary of State could have made would not provide lawful authority for detention.
3. Children and policy. The published UKBA guidance required individual consideration of family relationships, the welfare and circumstances of children, proportionality, risk, and less restrictive management. The claimant’s children were a powerful consideration against detention. Their presence could also reduce the risk of absconding. The failure to obtain or use relevant risk information, to consider stringent conditions, and to revisit the Children’s Champion’s recommendation demonstrated serious flaws, although the evidence did not establish that the earlier decisions were irrational or causative of unlawful detention.
4. Detention after reconsideration ordered. The order for reconsideration of the deportation appeal on 23 October 2009 was a material change. By November, the reasons for opposing bail were weak and inconsistent with the policy. They failed adequately to address the children’s welfare, the low assessment of risk of harm, the likely effect of the claimant’s custodial sentence, the licence conditions, and the powerful family incentives to comply. The decision to oppose bail on stringent terms was irrational and caused the continued detention.
5. Convention rights and outcome. Published criteria regulating detention were relevant to whether detention was in accordance with the law under Articles 5 and 8. The best interests of the child had to be a consideration of the first importance, though not paramount or determinative. Failure to apply the policy and to consider the children’s welfare made detention after 23 November unlawful and disproportionate. A declaration was made that the claimant was unlawfully detained from 23 November to 21 December 2009. Damages were to be assessed separately if not agreed.

First-instance judicial review proceedings. The judgment itself records that an earlier deportation appeal had been dismissed by the AIT on 24 August 2009, and that reconsideration was ordered by Burnett J on 23 October 2009. The present court did not determine the merits of that deportation appeal.