Swaran v Secretary of State for the Home Department

A statutory power to detain a person whose leave to enter has been suspended may operate both pending completion of examination and pending the decision whether to cancel leave. The power is subject to implied public-law limits. Detention must pursue the statutory purpose, remain reasonable in all the circumstances, and be exercised with reasonable diligence and expedition. If a decision cannot be made within a reasonable period, continued detention is impermissible. A relaxed administrative approach causing avoidable delay may make detention unlawful. Where detention would lawfully have occurred in any event, damages for an earlier unlawful period may be nominal only.

The claimant sought a declaration and damages for alleged unlawful detention under the Immigration Act 1971. He had entered with leave, which was suspended after allegations concerning his civil partnership and immigration status. He was detained from 22 September 2011 until his release following success in a later asylum appeal on 14 May 2012.

The court considered whether the Administrative Court proceedings were properly constituted, the construction of paragraph 16(1A) of Schedule 2, the lawfulness of detention before and after cancellation of leave, and whether any damages should be nominal.

1. Claims seeking damages alone should ordinarily be brought in the County Court or Queen’s Bench Division. Judicial review may include a damages claim, but may not seek damages as the sole remedy under CPR 54.3(2). A declaration which adds nothing to a damages claim does not alter its substance.

2. Paragraph 16(1A) of Schedule 2 to the Immigration Act 1971 confers separate powers to detain a person whose leave has been suspended: first, pending completion of examination under paragraph 2A; and secondly, pending a decision whether to cancel leave. The use of “and” does not merge those powers. The court adopted the interpretation in R(Alo) v Secretary of State for the Home Department [2012] EWHC 2375 (Admin).

3. The detention power is subject to implied limitations derived from its statutory purpose and the principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as modified and approved in R(Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 1245. The Secretary of State may detain only pending the relevant decision, for a reasonable period, and while acting with reasonable diligence and expedition. Detention should cease if it becomes apparent that the decision cannot be made within a reasonable period.

4. Detention from 26 September to 9 October 2011 was unlawful. The failure to pursue the necessary enquiries actively, including the delay in contacting the relevant Home Office unit, amounted to an impermissibly relaxed approach.

5. Detention from 9 October 2011 to 14 May 2012 was lawful. Removal was intended, the period remained reasonable, the Secretary of State acted with diligence, and the published detention policy was properly applied. The likelihood of removal, alleged immigration abuse, possible offending risk and the available information about the claimant’s circumstances justified continued detention.

6. The claimant was entitled to nominal damages only for the unlawful period because he would in any event have been lawfully detained after cancellation of his leave.

The claim was issued for judicial review on 17 September 2012. Permission was initially refused on 30 January 2013, but was granted on amended grounds on 21 May 2013. The Administrative Court then determined the substantive claim.