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

Detention under section 36(1) of the UK Borders Act 2007 cannot run in parallel with imprisonment under a custodial sentence. The power arises only when the foreign prisoner has served the period of imprisonment required by the sentence and would otherwise be released. A prisoner treated as released on home detention curfew may then be detained under section 36 while deportation is considered. If that detention ends, continued custody requires a lawful exercise of the relevant prison powers, including the statutory power to revoke the licence. Retaining the person in prison without following that route constitutes unlawful detention.

The claimant, an Algerian national serving a sentence of 20 months for possession of cocaine with intent to supply, was being considered for automatic deportation. Prison authorities assessed him as suitable for release on home detention curfew under section 246 of the Criminal Justice Act 2003, with release planned for 9 July 2010. The Secretary of State then issued an IS91 under section 36(1) of the UK Borders Act 2007.

The claimant remained physically in prison. He was later granted immigration bail, but an immigration judge purported to treat that decision as void following an intervention by the UK Border Agency. The Secretary of State withdrew the detention notice, although the claimant remained detained. The central issue was whether the claimant could simultaneously remain a serving prisoner and be detained under section 36 for immigration purposes.

1. Claim succeeded. The court quashed the order made by the designated immigration judge on 26 August 2010, ordered the claimant’s release on the conditions imposed by the First-tier Tribunal on 25 August 2010, and declared that he had been unlawfully detained since 26 August 2010.
2. Section 36(1) of the UK Borders Act 2007 applies to a person who has served the period of imprisonment required by the custodial sentence. It does not apply merely because the person has served any part of the sentence, nor only after the whole custodial element has expired.
3. The statutory scheme shows that section 36 is intended to permit detention when a foreign prisoner would otherwise be released, while the Secretary of State considers whether automatic deportation applies and whether a deportation order should be made. Before the earliest release date, the person remains a serving prisoner and there is no need for parallel immigration detention.
4. The two statutory regimes are mutually exclusive. The claimant was, on the documents, treated as released on licence under section 246 of the Criminal Justice Act 2003 and thereafter detained under section 36(1). He was therefore entitled to apply for immigration bail. Once bail was granted, his continued detention could not be justified by simply retaining him in prison.
5. If release on home detention curfew was inappropriate, the proper course was to use the statutory power to revoke the licence under the Criminal Justice Act 2003. That route was not taken. The intervention purporting to invalidate the bail decision was also procedurally unfair because the claimant had received no notice or opportunity to respond. Damages were to be assessed if not agreed, and the defendant was ordered to pay the claimant’s costs on the standard basis.