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

A defect in an immigration notice does not necessarily invalidate the underlying decision. The court must ask what consequence Parliament intended to attach to the non-compliance, having regard to the purpose of the requirement and any prejudice caused. Substantial compliance may suffice where the recipient understood both the decision and the restriction on appeal rights.

Immigration detention must be justified throughout its duration. The detaining authority must establish that removal was imminent, that detention remained reasonable, and that removal could be achieved with reasonable diligence. It must also comply with relevant published detention guidance and consider alternatives to detention. The burden of proving lawfulness rests on the detaining authority.

The claimant, a Burmese national holding a Chinese passport, entered the United Kingdom with student leave and later claimed asylum and humanitarian protection. The Secretary of State rejected her claim, certified it as clearly unfounded and made a decision to remove her. The accompanying reasons letter referred to the wrong subsection of the statutory certification provision.

The claimant challenged periods of immigration detention. The Secretary of State accepted that detention before service of the removal notice was unlawful. The remaining issues were whether the defective notice invalidated the removal decision and whether detention from 1 to 3 April and from 9 June to 3 July 2009 remained lawful.

1. Defective notice. The notice and accompanying reasons letter had to be read together. The reference to section 94(2), rather than section 94(1A), was an error, but it was an error of form rather than substance. The documents made clear that the claimant’s asylum and human rights claim had been certified as clearly unfounded and that her in-country appeal right was restricted.
2. Applying the approach in R v Soneji [2006] 1 AC 340, the question was whether Parliament intended the breach to invalidate the decision. The purpose of the notice requirement was to inform the recipient of the restriction on appeal rights. The claimant was not misled or prejudiced, and substantial compliance had occurred. The removal decision therefore remained valid.
3. Detention from June 2009. The defendant was initially entitled to detain the claimant because removal was impending and the decision denying an in-country appeal was valid. The detention principles identified in R v Governor of Durham Prison, ex parte Singh [1984] 1 WLR 704 and R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 required reasonable detention, reasonable diligence and expedition, and cessation of detention when removal could not be effected within a reasonable period.
4. The published detention policy also constrained the statutory discretion. Following Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768 and Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, compliance with the policy, consideration of alternatives and continuing justification were relevant to lawfulness. By 19 June, the defendant should have recognised that removal was no longer imminent, given the served judicial review proceedings and the arguable challenge to the notice.
5. The defendant failed to prove the lawfulness of detention from 19 June to 3 July. The additional detention from 1 to 3 April was also unlawful because the claimant had not been lawfully detained following the earlier failure to serve the notice, and the defendant produced no evidence that removal was then imminent or that alternatives were impracticable.

The claimant was entitled to a declaration that she had been unlawfully detained from 1 to 3 April and from 19 June to 3 July 2009, with consequential orders concerning costs and assessment of damages.