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

The Secretary of State must follow and correctly interpret her published detention policy, subject to the limits imposed by R v the Governor of Durham prison ex parte Hardial Singh. Whether removal is imminent under the policy is ordinarily a factual judgment for the Secretary of State, subject to supervisory review. The policy does not require automatic release when judicial review proceedings are lodged. It permits a reasonable period of continued detention while the Secretary of State considers the proceedings and assesses their merits, provided removal remains reasonably regarded as imminent and the detention remains lawful.

The claimant, an Eritrean national, sought judicial review of his detention between 11 September and 20 September 2012. He had claimed asylum in the United Kingdom, but Malta had accepted responsibility under the Dublin Regulation and removal directions had been issued. His solicitors raised challenges concerning returns to Malta and subsequently lodged judicial review proceedings.

Permission was initially refused on the papers. On renewal, permission was granted on the ground that detention might have breached the Secretary of State’s published detention policy. The central issue was whether the Secretary of State was reasonably entitled to regard removal as imminent during the period of detention, including after the claimant’s judicial review application had been lodged.

1. The claim was dismissed. The claimant’s detention was lawful. The court made no order as to costs and ordered a detailed assessment of the publicly funded costs.
2. The Secretary of State was bound, subject to the usual qualifications, to follow the published detention policy and to interpret it correctly. Interpretation of the policy was a question of law. Detention also had to comply with the principles in R v the Governor of Durham prison ex parte Hardial Singh. The exercise of the statutory detention discretion remained subject to the court’s supervisory jurisdiction, as explained in R (LE) (Jamaica) v SSHD.
3. The relevant question was whether the Secretary of State was reasonably entitled to conclude that removal was imminent for the purposes of the policy. The detention records and evidence showed that the Secretary of State had consistently treated removal to Malta as imminent. She was entitled to regard the claim as weak and to continue pursuing removal despite permission having been granted in other Malta-related judicial review cases. Those cases were not test cases and no stay had been ordered.
4. The errors in the certification letter, including references associated with Cyprus and an inappropriate sentence concerning pending proceedings, did not vitiate the detention decisions. The substance of the reasoning remained that removal to Malta could proceed. There was no evidence that the Cyprus case had influenced the initial decision to detain.
5. Lodging judicial review proceedings did not automatically require release. Properly construed, the policy allowed the Secretary of State a reasonable period to consider the implications and merits of the proceedings, including proceedings challenging a specialist unit’s decision. The approach in R (N) v SSHD supported that construction, although the facts of that case were materially different. The period taken in this case was reasonable.

First-instance judicial review proceedings. Permission was granted on renewal by Clare Moulder, sitting as a Deputy Judge of the High Court, on the detention-policy ground.