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

Immigration detention must remain within the Hardial Singh limits. The Secretary of State must intend to deport, act with reasonable diligence and expedition, and detain only for a period reasonable in all the circumstances. The best interests of affected children must be a primary consideration when immigration and detention functions are exercised under Borders, Citizenship and Immigration Act 2009, section 55. That duty does not automatically determine the outcome, but decision-makers must consider the children’s interests first and give them appropriate weight. Detention may become unlawful when it is apparent that removal cannot be achieved within a reasonable period, including where a necessary parenting assessment can occur only after release. A merits appeal to the First-tier Tribunal will ordinarily be the appropriate remedy for challenging deportation orders where such an appeal is already available.

The claimants sought judicial review of the detention of the first claimant, a Jamaican national convicted of serious drug offences, and of deportation orders made against her and her three children. The first claimant had been detained from her release from prison in October 2009 until bail was granted in September 2010. The children were living separately and there were unresolved concerns about parenting, welfare and the feasibility of deporting the family together.

The court considered whether the initial detention was unlawful, whether continued detention became unlawful through delay, and whether the deportation orders were unlawful for failure to comply with statutory and Convention duties. Appeals against the deportation orders were already pending before the First-tier Tribunal.

1. Initial detention. The detention was authorised before the first claimant’s release on licence and adequate notice had been given. The use of both statutory formulations in section 36 was initially imprecise, but did not invalidate the detention on the facts. A public law error can render statutory detention unlawful, but the evidence showed that the children’s welfare had been treated as a primary consideration. The initial detention was therefore lawful and compatible with Articles 5 and 8 ECHR (paras [114]-[130]).
2. Children’s best interests. Applying ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148, the best interests of the children had to be considered first. They did not automatically dictate the result, because other considerations could outweigh them, provided no other consideration was treated as inherently more significant. The duty under section 55 did not displace the automatic deportation provisions, but required those functions to be exercised with proper regard to the children’s welfare.
3. Continued detention. The Hardial Singh principles required reasonable diligence and permitted detention only for a reasonable period. The risks of absconding and reoffending remained relevant, and the NOMS assessment was not determinative. However, by the end of May 2010 it was clear that a parenting assessment could not be conducted while the claimant remained detained, and the Children’s Champion had advised release so that assessment and reunification could occur. Her continued detention thereafter, after more than seven months, became unreasonable and unlawful (paras [131]-[144]).
4. Deportation orders. The challenge to the deportation orders was stayed. The First-tier Tribunal was already seized of merits appeals, could receive and evaluate oral evidence, and was better placed to consider the children’s interests and the claims in the round. The appeal constituted an adequate and proportionate remedy, and no exceptional abuse of power or comparable circumstance justified judicial review at that stage (paras [145]-[154]).

The application succeeded only in relation to the unlawfulness of continued detention after the end of May 2010. The court would hear counsel on the form of the order.

First-instance judicial review. The judgment records that appeals against the deportation orders had been lodged before the First-tier Tribunal on 22 July 2010, with a directions hearing fixed for 18 April 2011. The deportation challenges were stayed so that the statutory appeal process could proceed.