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

The statutory power to detain pending removal is lawful only where there is a reasonable prospect of removal within a reasonable period, having regard to all relevant circumstances. Removal may remain imminent even where removal directions have been cancelled, if judicial review proceedings and necessary medical arrangements are likely to be resolved within that period. A breach of detention policy does not, without more, determine lawfulness, although the Secretary of State accepted that detention would be unlawful if it would not have occurred had the policy been properly applied. The availability of alternative malaria prophylaxis and the short period needed to respond to a permission decision supported continued detention.

The claimant, a Ugandan national, sought judicial review of decisions concerning further representations and the detention of herself and her two children pending removal. The fresh-claim issue ceased to be live after the Secretary of State accepted later representations as a fresh claim.

The remaining issue was whether detention during two periods, from 7 to 22 December 2008 and from 17 February to 12 March 2009, was unlawful. The claimant relied on the principles governing detention pending removal and alleged breaches of the Secretary of State’s family-detention and malaria-prophylaxis policies. The central question was whether there remained a reasonable prospect of removal within a reasonable period.

1. Claim dismissed. The claim for unlawful detention and damages failed.
2. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 was subject to the Hardial Singh principles. Detention required a reasonable prospect of removal within a reasonable period, having regard to all relevant circumstances.
3. The fact that removal directions had been cancelled did not itself make removal no longer imminent. The Secretary of State could reasonably conclude that the judicial review proceedings would be dealt with quickly and that suitable malaria prophylaxis could be arranged within a reasonable period. The approach was supported by R (WM) v SSHD and R (Ahmed) v SSHD.
4. For the first period of detention, the Secretary of State was entitled to maintain detention after cancellation of the original removal directions. The proceedings might have been expedited, alternative medication such as Mefloquine was potentially available, and the claimant’s illness meant that she was temporarily unable to return to her accommodation.
5. For the second period, it remained reasonable to believe that removal could follow effective prophylactic treatment after the removal directions were reset. The two days between the renewal hearing and release were not unreasonable in light of the administrative steps required to release a family into appropriate publicly funded accommodation and support.
6. The judgment noted the difficulty in reconciling R (Nadarajah) v SSHD with SK (Zimbabwe) v SSHD. For the purposes of this case, the Secretary of State accepted that detention would be unlawful if it breached the Hardial Singh principles or would not have occurred had the published policy been properly applied.