Mahajna ( Salah ) v Secretary of State for the Home Department

A statutory power to detain a person pending deportation must be exercised for a deportation-related purpose and consistently with the Hardial Singh principles. Relevant public-protection risks may inform the reasonable duration of detention. A detainee must also receive, promptly and in a language he or she understands, a brief explanation of the essential legal and factual grounds for arrest and detention. Reciting a statutory provision is insufficient. An initially unlawful detention may become lawful when adequate reasons are later provided. The duty is not dependent on a request by the detainee.

The claimant, an Israeli citizen, entered the United Kingdom with valid leave. The Secretary of State had already decided to exclude him and subsequently decided to deport him on the ground that his presence was not conducive to the public good. He was arrested and detained pending deportation, although he did not speak English and the reasons given to him were initially inaccurate or incomplete.

The claimant sought judicial review of his detention, alleging breach of the statutory purpose of detention, the Secretary of State’s published policy, and the common-law and Convention requirements to provide reasons for arrest and detention. The central issues were whether the detention served a permissible deportation-related purpose and whether adequate reasons had been communicated promptly in a language he understood.

1. Disposition. Permission to apply for judicial review was granted. The challenge based on statutory purpose and detention policy failed, but the challenge based on inadequate reasons succeeded. The claimant was unlawfully detained from his arrest on 28 June 2011 until his solicitors explained the reasons for detention on 30 June 2011, and was entitled to damages for wrongful detention.
2. Purpose and duration of detention. The power to detain pending deportation had to be exercised to facilitate deportation. The Secretary of State nevertheless intended to deport the claimant, and detention could take account of the risk that his release would prejudice the public interest. The statutory purpose was construed broadly enough to include furthering the object of deportation, including removal of a person whose presence was not conducive to the public good. The limitation as to purpose and the limitation as to time were closely connected.
3. Published policy. The Enforcement Instructions and Guidance did not contain the alleged lacuna. Its provisions required consideration of the likelihood and timescale of removal, the risk of offending or harm to the public, and other relevant factors. Those provisions were not confined to foreign national prisoners or cases handled by the Criminal Casework Directorate. The detention was therefore consistent with the policy.
4. Reasons for arrest and detention. Under the common law and Article 5(2) of the European Convention on Human Rights, the detainee had to be told, in simple language he could understand, the essential legal and factual grounds for arrest. At the hotel, merely reciting section 2(4) of Schedule 3 to the Immigration Act 1971 did not explain that the arrest was connected with impending deportation. The language barrier supplied an additional defect because the defendant had not shown that reasonable steps had been taken to provide an explanation in Arabic.
5. The inaccurate statement that the claimant was arrested for immigration offences did not cure the defect. Nor did the later explanation that he was detained under the Immigration Act, because it did not tell him that removal was considered imminent. The IS91R was not properly interpreted until 30 June. The duty to provide reasons did not depend on a request from the detainee. The erroneous additional reason concerning alternative care arrangements did not invalidate the detention after the form had been explained, because it had not misled or prejudiced the claimant.

The judgment records that Stadlen J granted bail on 15 July 2011 and directed an expedited rolled-up hearing. The present court granted permission for judicial review and determined the substantive claim.