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

Under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, reasonable grounds for suspecting that a person is liable to removal may protect detention based on a reasonable mistake of fact. They do not extend to a misunderstanding of the law, however reasonable that misunderstanding may have been. That conclusion follows from the wording of the provision, the common-law protection of liberty and the requirement for clear words before that protection is reduced. A later judicial decision declaring the law does not convert an earlier misunderstanding of the law into a lawful basis for detention. Hardial Singh principles remain separately applicable: detention is lawful only for a reasonable period and while removal remains achievable within that period.

The claimant, an Afghanistani national and unaccompanied minor when he claimed asylum in the United Kingdom, was detained for 17 days pending his proposed removal to Italy under the Dublin II Regulation. The Secretary of State believed that Italy was responsible for determining his asylum claim. The Court of Justice subsequently held in MA and others v United Kingdom [2013] 1 WLR 2961 that responsibility lay with the state in which the unaccompanied minor was present after lodging an asylum application.

The claimant challenged his detention on two grounds. First, he argued that the Secretary of State’s mistaken interpretation of the Dublin II Regulation could not constitute reasonable grounds under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. Secondly, he relied on the Hardial Singh principles, contending that removal could not be effected within a reasonable period.

1. Ground 1 succeeded. The declaratory effect of the CJEU’s decision meant that the law had always been that the United Kingdom, rather than Italy, was responsible for the claimant’s asylum claim. The Secretary of State accepted that the claimant could not lawfully have been removed to Italy.
2. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 had to be construed narrowly because it authorised interference with personal liberty and reduced the protection otherwise provided by the tort of false imprisonment. The expression reasonable grounds for suspecting was not clearly apt to cover an erroneous understanding of the legal position. It was directed principally to uncertainty about the characteristics or facts relating to the person liable to removal.
3. The court followed the approach in Walker v Lovell [1975] 1 WLR 1141, that reasonable cause protects an honest and reasonable mistake of fact but not a mistake of law. Percy v Hall [1997] QB 924 and R v Governor of Brockhill Prison, ex parte Evans [2001] 2 AC 19 were consistent when properly distinguished: legislation later declared invalid differs from a misunderstanding of the law’s meaning.
4. Although Ruddock v Taylor [2005] HCA 48; (2005) 221 ALR 32 was highly persuasive, the court declined to adopt the majority’s reasoning. Greater weight was given to the English authorities and to the reasoning of McHugh J and Kirby J concerning strict construction and the distinction between fact and law.
5. The Secretary of State therefore lacked reasonable grounds for suspecting that the claimant was liable to removal to Italy. His detention from 24 August to 10 September 2009 was unlawful.
6. Ground 2 failed. Pending litigation concerning removals to Italy did not by itself make removal impossible within a reasonable period. Before proceedings were issued, it was not apparent that removal could not take place within a reasonable period. After proceedings were issued, the Secretary of State was entitled to a reasonable period to assess their relevance; one week was not excessive. The detention was therefore not unlawful under the Hardial Singh principles.

First-instance judicial review. Permission was granted by Michael Kent QC, sitting as a Deputy High Court Judge, on 10 December 2013. The claim was determined by the High Court (Administrative Court); no appellate decision is stated.