FM v Secretary of State for the Home Department (Rev 1)

Immigration detention pending removal must comply with the Hardial Singh principles and with published policies that qualify the statutory discretion. Guidance that describes removal as imminent guides caseworkers. It does not impose a stricter legal test than removal within a period reasonable in all the circumstances. It may encompass removal within weeks where there are no practical or legal barriers.

Family detention policy, read with the United Nations Convention on the Rights of the Child, requires proper consideration of alternatives and of the children’s best interests. Those interests are primary but not decisive. The need to administer malaria prophylaxis does not itself make detention unlawful if removal can reasonably follow after treatment takes effect. When removal can no longer be effected, a short and reasonable period for a release decision and safe accommodation arrangements may remain lawful.

The appellant, a failed asylum seeker from Uganda, was detained with her two very young children pending removal on two occasions: from 7 to 22 December 2008 and from 17 February to 12 March 2009. Removal was affected by the need to provide malaria prophylaxis to the children and by later removal directions being cancelled.

She sought judicial review of the lawfulness of the detention. Sir Thayne Forbes, sitting as an additional High Court judge, dismissed the claim. The appellant appealed, contending that removal was not imminent under the Secretary of State’s policy, that the malaria and family-detention policies had been breached, that the children’s interests required a stricter approach, and that a two-day delay in release was unlawful. She also sought to advance a late ground based on mental illness.

1. Appeal dismissed. The power in paragraph 16(2) of Schedule 2 to the Immigration Act 1971 was constrained by the Hardial Singh principles, as applied to removal cases: detention must be for the purpose of removal, for no longer than is reasonable in all the circumstances, and pursued with reasonable diligence. Published detention policies which give practical effect to those principles also qualified the discretion.

2. The instruction that removal should be considered “imminent” did not create a separate and more onerous legal threshold. The guidance treated removal likely within four weeks, where travel documents and removal directions existed and there were no legal barriers, as capable of being imminent. It was an application of the reasonable-period inquiry, not a substitute for it. The ultimate question remained whether detention and the anticipated removal were reasonable on the particular facts.

3. The Secretary of State had made an initial mistaken assumption about the children’s ability to receive prophylaxis, and was wrong to suggest that the appellant bore the onus of proving its need. However, the policy required prophylaxis to be offered and allowed time to take effect; it did not prohibit detention whenever prophylaxis was required. The evidence entitled the Secretary of State to conclude that suitable treatment could take effect and removal occur within two to three weeks. Detention was therefore not unlawful on that ground.

4. The family-detention policy had to be applied with Articles 3 and 37(b) of the United Nations Convention on the Rights of the Child in mind. All reasonable alternatives had to be considered before detaining a family, and the children’s best interests were a primary, though not exclusive, consideration. The judge had not fully analysed the reasons for continued detention, but the Court’s own assessment showed a real risk of absconding and that it was in the children’s interests to remain with their mother. Detention in both periods was lawful.

5. Detention must cease when it is clear that it is no longer required to effect removal. Common sense nevertheless permits a short, reasonable period for the decision-making process and necessary arrangements for release, including suitable accommodation and management of any residual absconding risk. The two-day period before final release was not shown to be unlawful.

6. The Court refused permission to advance the late mental-illness ground. It was fact-sensitive, had not been argued below, and the Secretary of State could have obtained and adduced relevant evidence had it been raised in time.

• Court of Appeal (Civil Division): On 14 July 2011, dismissed the appellant’s appeal from the dismissal of her judicial-review claim: [2011] EWCA Civ 807.
• High Court: Sir Thayne Forbes, sitting as an additional judge of the High Court, dismissed the claim for judicial review on 1 March 2010.