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

A public authority relying on immigration detention must identify and prove the statutory power actually used throughout the relevant period. The justification must exist objectively when detention occurs; an ex post facto justification is insufficient.

Service of the relevant immigration decision is a condition precedent where the statutory detention power depends on that decision. Revocation of a deportation order operates prospectively and does not retrospectively invalidate detention lawfully imposed while the order was in force. A later deportation order cannot be made on unchanged circumstances where the earlier order was revoked and the decision to make it consequently fell away. Detention may also be unlawful for breach of the Hardial Singh principles.

The claimant challenged a second deportation order and his detention between September 2010 and November 2013. His first deportation order had been made on the basis that he was Portuguese, but it was revoked after Portugal refused him entry. The Secretary of State subsequently investigated his nationality and made a second order under the automatic deportation provisions of the UK Borders Act 2007, believing that he was Jamaican.

The issues were whether the detention during four successive periods was authorised by the statutory powers relied upon, whether the second deportation order was valid, whether the claimant’s alleged deceit supplied a defence, and whether continued detention breached the Hardial Singh principles.

1. First period. Detention from 21 September to 18 October 2010 was lawful under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. The original deportation order was valid when made. Its later revocation under section 5(2) operated prospectively and did not undo detention during the order’s lifetime.
2. Second period. Detention from 18 October 2010 to 5 April 2011 was unlawful. The Secretary of State failed to prove, on the balance of probabilities, that section 36(1)(a) of the UK Borders Act 2007 was the power actually relied upon. The evidence instead showed that officials had continued to treat the revoked deportation order as authorising detention. The later reliance on section 36(1)(a) was an ex post facto justification.
3. Third period. Detention from 5 April 2011 to 11 July 2013 was unlawful. Section 36(1)(b) required the Secretary of State to think that section 32(5) applied, pending the making of a deportation order. That decision was an appealable immigration decision and had to be notified so that the claimant could exercise his appeal rights. No such decision was notified until 11 July 2013. The December 2011 notice showed that the issue remained under consideration and did not establish the necessary decision.
4. Fourth period. The second deportation order was unlawful. Following R (George) v Home Secretary [2014] 1 WLR 1831, revocation did not remove the claimant’s continuing liability to deportation, but the decision to make the original order had fallen away. Applying R (Pryor) v Secretary of State for the Home Department [2013] EWHC 2853 (Admin), a fresh order required a proper basis. The Secretary of State’s greater knowledge of the claimant’s antecedents was not a sufficient change; the material reason for the second order was the conclusion that he could be deported to Jamaica.
5. Alternatively, detention under the second order breached the third and fourth Hardial Singh principles because there was no realistic prospect of deportation to Jamaica within a reasonable time and the Secretary of State had not acted with reasonable diligence and expedition.
6. The alleged deceit did not bar judicial review or provide a defence to unlawful detention. The evidence did not establish fraud on the balance of probabilities. In any event, ex turpi causa could not justify detention otherwise lacking lawful authority and did not defeat the alternative Convention claim.
7. The claimant was falsely imprisoned and detained in breach of article 5 of the ECHR from 18 October 2010 to 13 November 2013. Damages were to be assessed at a further hearing if not agreed.