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

An immigration detainee may be detained under Schedule 3 to the Immigration Act 1971 only while the statutory conditions for detention remain satisfied. Where an appeal ceases to be pending, the power to detain lapses; a later monthly detention review may constitute a fresh decision, but only when the appeal is pending again. The Hardial Singh principles require an intention to deport, detention for a reasonable period, a realistic prospect of removal within that period, and reasonable diligence. The court must ultimately determine whether detention remains reasonable. Risk of absconding or reoffending must be assessed individually and against possible release conditions. In exceptional circumstances, an immigration detainee may lawfully be held in prison rather than an immigration removal centre.

The claimant, a Portuguese national, sought judicial review of her detention under immigration powers from 11 July 2010 to 7 March 2012. She had been convicted of cruelty to her child and was detained after the custodial part of her sentence ended while deportation proceedings and appeals continued.

Her appeal against deportation was allowed, but the Secretary of State obtained permission to appeal out of time. The claimant remained detained until she obtained bail. She challenged the existence of lawful authority, compliance with the Hardial Singh principles, the failure to consider alternatives and provide a bail address, and detention in prison rather than an immigration centre. The central issues were when the statutory power to detain arose and whether continued detention remained reasonable.

1. Statutory authority. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 authorised detention pending the making of a deportation order after notice of the decision to make one had been given. Under section 104 of the Nationality, Immigration and Asylum Act 2002, an appeal ceased to be pending when finally determined, withdrawn, abandoned or lapsed. The claimant’s appeal ceased to be pending on 20 January 2011, when the period for seeking permission to appeal expired, and the power to detain consequently lapsed.
2. Permission to appeal out of time was granted on 7 February 2011, when the appeal became pending again. Monthly detention reviews were, in substance, fresh decisions to detain because each 28-day period required a review and renewed authorisation. The 25 January review could not validate detention during the period when no appeal was pending, but the 17 February review could authorise detention after 7 February.
3. Hardial Singh principles. The Secretary of State had to intend to deport the claimant and use detention only for that purpose; detention had to remain reasonable in all the circumstances; detention could not continue once removal within a reasonable period was no longer realistically possible; and reasonable diligence and expedition were required. The court itself had to decide whether the period was reasonable, while giving appropriate weight to the Secretary of State’s assessment.
4. The detention was justified initially and remained reasonable during the first period while the appeal process was proceeding. Risk of absconding and reoffending could be considered, but it did not justify detention without an apparent time limit. Individual circumstances and possible safeguards, including electronic tagging and other restrictive conditions, had to be considered. The Secretary of State also had to use reasonable endeavours to provide a bail address where the absence of one was likely to prolong detention.
5. By 2 September 2011, after the appeal process had become protracted and removal was not imminent, detention had become unreasonable and unlawful. The claimant’s detention was therefore unlawful from 2 September 2011 until her release on 7 March 2012.
6. Article 5(1). The place and conditions of detention had to bear a relationship to the permitted ground of detention. Immigration detainees should ordinarily be held in immigration accommodation, but exceptional circumstances could justify detention in the prison estate. The claimant’s serious violent offence against her child, risks to children, drug history and lack of insight constituted exceptional circumstances. No declaration of breach of Article 5(1) was made.

A declaration of unlawful detention was appropriate for the period from 2 September 2011 to 7 March 2012. Damages, the precise form of declaration and costs were reserved for further argument.

Not an appeal. The judgment determined a first-instance judicial review claim.