Francis, R (On the Application Of) v The Secretary of State for the Home Department

A foreign national prisoner detained under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 is detained under a statutory warrant derived from the sentencing court’s deportation recommendation. An unlawful detention policy does not invalidate that warrant or give rise to damages for false imprisonment. The same reasoning applies to continued detention under the parenthetic part of paragraph 2(3) where the original detention arose under paragraph 2(1).

The Hardial Singh principles nevertheless limit detention. Continued detention becomes unlawful when removal cannot reasonably be achieved, even where the detainee’s lack of co-operation contributed to the impasse. Risk of absconding or reoffending is relevant, but neither is a trump card.

The claimant challenged immigration detention lasting more than three years and nine months. He had been convicted of possessing a passport relating to another person and recommended for deportation to Jamaica. He consistently claimed to be British, while the Asylum and Immigration Tribunal found that he was Jamaican and had entered the United Kingdom unlawfully.

The claim concerned three periods: detention under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 before the deportation order; continued detention under paragraph 2(3); and alleged breaches of the Hardial Singh principles. The claimant also challenged an alleged failure to refer his case for senior consideration under the defendant’s release policy. The central issues were whether policy errors invalidated the statutory authority for detention and when continued detention became unlawful.

1. Ground one dismissed. The claimant’s detention before and after the deportation order was authorised by the statutory warrant in paragraph 2(1), continued through the parenthetic part of paragraph 2(3). The authority derived from the sentencing court’s recommendation for deportation, rather than from a discretionary decision by the Secretary of State.

2. The distinction between paragraph 2(1) and paragraph 2(2) remained material. Lumba v Secretary of State for the Home Department, [2011] UKSC 12, Kambadzi and R (Muqtaar) v Secretary of State for the Home Department, [2013] 1 WLR 649, concerned detention based on the executive’s discretionary power under paragraph 2(2), followed by paragraph 2(3). They did not displace the reasoning in WL (Congo) v Secretary of State for the Home Department, [2010] 1 WLR 2168, concerning detention under paragraph 2(1).

3. The claimant’s detention policy arguments could therefore not found a claim for false imprisonment. The statutory warrant was unaffected by policy error. The claim for damages was dismissed.

4. The release policy was capable of lawful operation and was not inherently unduly bureaucratic. However, the evidence showed that officials repeatedly considered that referral for senior consideration was appropriate, yet no referral was made. But for the conclusion on ground one, ground two would have succeeded.

5. The Hardial Singh principles applied throughout. Detention must be for the purpose of deportation, must last no longer than reasonably necessary, and must cease when it becomes apparent that removal cannot be achieved within a reasonable period. The assessment is fact-sensitive and includes the length of detention, obstacles to removal, the Secretary of State’s diligence, the detainee’s co-operation, and risks of absconding or reoffending. No factor is necessarily determinative.

6. The claimant’s lack of co-operation and the risks of absconding and reoffending were relevant. They did not, however, justify detention indefinitely. By the end of April 2010 it should have been apparent that Jamaica would not issue a travel document without proof of identity and that the claimant would not provide it. From 1 June 2010, detention would therefore have been unlawful under the second and third Hardial Singh principles, subject to the effect of ground one.

7. The claim for damages was dismissed. The claimant was ordered, subject to further submissions, to pay the defendant’s costs, subject to detailed assessment if not agreed.