Secretary of State for the Home Department v Gaviria-Manrique

Under Schedule 3 to the Immigration Act 1971, mandatory detention arising from a recommendation for deportation under paragraph 2(1) ends when the person is released on bail. A later detention is governed by the discretionary power in paragraph 2(3) where a deportation order remains in force; the earlier mandatory authority does not revive. A good-faith decision to detain may remain lawful despite a procedural defect in service or a flawed appeal decision, where statutory power exists and the decision-maker acts on the facts as reasonably understood. Continued detention must nevertheless be reconsidered when the defect becomes known and cannot be justified indefinitely by the original decision.

The Secretary of State appealed against orders made by His Honour Judge Sycamore in the Administrative Court, reported at [2014] EWHC 33 (Admin). The judge held that the respondent’s detention from 21 January to 18 March 2008 was unlawful and gave rise to general damages. The parties agreed that the later detention from 27 August to 17 September 2008 was unlawful only for the purposes of nominal damages. The appeal concerned the statutory basis for detention following a deportation recommendation and deportation order, the effect of the respondent’s earlier release on bail, and whether an unserved notice of decision made the original detention unlawful.

1. Disposition. Lord Justice McCombe gave the judgment, with Lord Justices Tomlinson and Longmore agreeing. The appeal was allowed in part. The respondent was unlawfully detained so as to give rise to general damages only from 6 to 18 March 2008. The agreement concerning nominal damages for the second detention period remained undisturbed.
2. Statutory scheme. Section 5(5) of the Immigration Act 1971 directs attention to Schedule 3. Paragraph 2(1) imposed an obligation to detain while the deportation recommendation remained in force and the respondent was no longer detained under his criminal sentence. That obligation ended when he was released on bail on 29 August 2006. It did not revive when he was detained again in January 2008. Since the deportation order remained in force, the later detention rested on the discretionary power in paragraph 2(3).
3. The court distinguished R (Francis) v Secretary of State for the Home Department [2014] EWCA Civ 718. Francis concerned continuous detention without release on bail. It did not establish that the mandatory authority under paragraph 2(1) revived after a subsequent release and re-detention.
4. Initial detention and notice error. The existence of the deportation order supplied a power to detain under paragraph 2(3). Following Ullah v Home Office [1995] Imm AR 166, a good-faith decision against a person liable to deportation could remain within the statutory power even though the decision was later shown to be flawed or to require further consideration. By analogy with Secretary of State for the Home Department v Draga [2012] EWCA Civ 842, the Secretary of State was entitled to treat the appeal rights as exhausted when the decision to detain was made and after the tribunal refused an extension of time.
5. The original detention decision was therefore lawful until the administrative error was discovered. Once the failure to serve the notice became known on 6 March 2008, the lower court’s factual conclusion that there was no continuing justification for detention could not be disturbed. The proposed counterfactual analysis relying on R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 did not take the Secretary of State’s case any further.

• Court of Appeal (Civil Division): allowed the appeal in part, limiting general damages to detention from 6 to 18 March 2008 and leaving the nominal-damages agreement concerning the later period undisturbed.
• High Court of Justice (Administrative Court): His Honour Judge Sycamore held that detention from 21 January to 18 March 2008 was unlawful and awarded general damages for that period. The parties agreed nominal damages in respect of the later detention period. Decision: [2014] EWHC 33 (Admin).