Suppiah & Ors, R (on the application of) v Secretary of State for the Home Department

The detention of families with children pending removal is lawful only as an exceptional measure of last resort. Decision-makers must consider reasonable alternatives, the individual circumstances, the shortest necessary period and the statutory duty to safeguard and promote children’s welfare. That welfare must ordinarily be treated as a primary consideration, although it is not paramount.

The court must determine the lawfulness of detention for itself. A policy is unlawful if it cannot be operated lawfully or creates an unacceptable risk of unlawful decision-making. The policy considered here was capable of lawful operation, but it had been applied unlawfully in the individual cases. The detention breached domestic law and Articles 5 and 8 of the ECHR, but the evidence did not establish the minimum severity required for Article 3.

Five claimants, comprising two mothers and their children, challenged their detention at Yarl’s Wood Immigration Removal Centre pending removal to Malaysia and Nigeria. They alleged that their detention was unlawful from inception or became unlawful during the detention, that the policy governing detention of families with children was unlawful, and that Articles 3, 5 and 8 of the ECHR had been infringed.

The court considered the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009, the published detention policy, the domestic principles governing immigration detention, the conditions at Yarl’s Wood and the evidence concerning harm to children. The central issues were whether the policy was legally operable and whether the detention decisions and reviews complied with the applicable statutory, domestic and Convention requirements.

1. The court held that the power to detain pending removal had to be exercised consistently with the principles derived from R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and summarised in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888. The Secretary of State had to intend removal, detain only for a reasonable period, release the person if removal could not be achieved within that period, and act with reasonable diligence and expedition. The court had to decide lawfulness for itself.

2. Under section 55 of the Borders, Citizenship and Immigration Act 2009, the need to safeguard and promote the welfare of children was a primary consideration unless cogent reasons justified a different approach. It was not the paramount consideration. The policy also required detention of families with children to be exceptional, a last resort, preceded by consideration of reasonable alternatives, individually assessed and maintained for the shortest possible period.

3. The policy was not unlawful merely because it did not prescribe every safeguard or decision-making step. A policy incapable of lawful operation, or creating an unacceptable risk of unlawful decision-making, would be unlawful. However, the evidence did not establish that this policy inevitably produced either result. Operational failures could be addressed by rigorous implementation, training and improved safeguards.

4. The detention of both families was unlawful from inception. The decision-makers had not demonstrated that section 55 had been properly considered or that the children’s welfare had been treated as a primary consideration. Reasonable alternatives, including assisted voluntary return and self-check-in, had not been adequately explored. The detention was not a last resort and was inconsistent with the published policy. In the first family’s case, detention would in any event have become unlawful by 16 February 2010 at the latest; in the second family’s case, continued detention was unlawful at least from 15 February and plainly from 19 February.

5. The conditions and medical treatment at Yarl’s Wood did not reach the Article 3 threshold. The unlawful detention was arbitrary for Article 5 purposes and infringed Article 8. The claims based on treatment at the centre, including the failure to assess special educational needs, were not established under Article 8.

6. The claimants were detained unlawfully until release. The challenge to the lawfulness of the policy failed. The Article 3 claims and the Article 8 claims based on conditions or treatment at Yarl’s Wood were dismissed.

First-instance judicial review proceedings. No appeal or earlier decision in the same proceedings is stated in the judgment.