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

In immigration detention cases, the lawfulness of the decision to detain is not confined to cases involving arbitrariness or an extreme public-law error. The court must scrutinise the statutory justification for detention and decide whether it is established on the evidence.

Detention pending examination may be lawful where the entrant’s answers reasonably require further investigation. Once that examination is complete, however, continued detention requires lawful and reasonable justification. Inadequate questioning, illogical inferences and an unfair assessment of the evidence may make detention unlawful. A breach of Article 5 may consequently give rise to compensation under Article 5(5).

The claimant, a Nigerian academic, arrived at Heathrow with a visa and was detained while customs and immigration officers investigated his proposed visit to an academic conference. He was arrested by customs officers on suspicion of drug smuggling, then transferred back to immigration custody after the suspicion was dispelled.

His leave to enter was cancelled on the asserted ground that he intended to work in the United Kingdom. He was detained overnight and removed to Nigeria. The Secretary of State later withdrew the cancellation decision, and the claimant brought proceedings alleging unlawful detention, breaches of Articles 3 and 5 of the ECHR, and misfeasance in public office.

The central issues were whether the initial and continued detention were lawfully justified, and whether the treatment complained of reached the relevant Convention thresholds.

1. Initial detention. The burden lay on the Secretary of State to establish lawful justification. The court rejected the submission that detention could be challenged only on the very high ground of arbitrariness. The court was required to scrutinise the justification advanced, having regard to the statutory powers relied upon.
2. The claimant’s answers on arrival reasonably required further investigation. Suspension of leave to enter and detention pending examination were therefore justified under paragraph 2A and paragraph 16(1A) of Schedule 2 to the Immigration Act 1971. The customs officers’ decision to conduct an X-ray was also justified, and the subsequent arrest was lawfully made under section 138 of the Customs and Excise Management Act 1979.
3. Detention until about 1600 hours was lawful. The customs investigation was not unlawfully contrived, and the immigration examination remained incomplete when the claimant was returned to immigration custody.
4. Continued detention. After the telephone call had verified the claimant’s attendance at the Manchester conference, the remaining inquiries were inadequate. He should have been asked what he intended to do with the CVs and educational certificates in his baggage. The inference that he intended to work was therefore wholly unreasonable, illogical and unfair. His travel arrangements did not justify the conclusion that he intended to breach his visa conditions. The requirements of rule 321 of the Immigration Rules were not met.
5. The examination had concluded by approximately 1600 hours, and the Secretary of State failed to justify detention thereafter. The claimant was therefore unlawfully detained from approximately 1600 hours until his arrival in Nigeria. The same period contravened Article 5(1), and engaged the right to compensation under Article 5(5).
6. The misfeasance claim failed because there was no evidence that the officers knew of, or were recklessly indifferent to, the illegality of their actions. The Article 3 claim also failed: the handcuff marks, standard sampling procedures, detention conditions and distress did not attain the minimum level of severity required.
7. The claimant was granted declarations concerning the later detention and Article 5. The other claims were dismissed. The claimant was awarded costs limited to one-third of his costs.

Permission to bring judicial review proceedings was granted by Cranston J. The claimant had previously appealed from Nigeria against cancellation of his leave to enter; the Secretary of State withdrew the decision and the tribunal recorded the appeal as withdrawn.