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

Executive detention must be clearly justified. A detention warrant is construed restrictively, with ambiguity resolved in favour of liberty.

Under paragraph 2(2) of Schedule 3 to the Immigration Act 1971, a warrant expressed to last until an appeal is finally determined in the detainee’s favour authorises one continuous period only. It lapses when the appeal becomes finally determined and is not revived by later permission to appeal out of time. Detention reviews are procedural safeguards and cannot themselves replace a fresh exercise of the statutory power. [2011] UKSC 23 applied.

The appellant, a Portuguese national, was detained after receiving notice of a decision to make a deportation order under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Her appeal to the First-tier Tribunal succeeded, and the time for the Secretary of State to appeal expired on 20 January 2011. Permission to appeal out of time was later granted, but she remained detained until bail was granted in March 2012.

On judicial review, the Administrative Court, in [2014] EWHC 1169 (Admin), held that the detention authority had lapsed initially but revived when permission to appeal was granted. It also held that detention became unlawful from 2 September 2011. The appellant appealed on the scope of the warrant and costs. The Secretary of State cross-appealed on whether further authority was required. The central issue was whether the original authority or subsequent Detention Reviews lawfully authorised detention after 20 January 2011.

Lord Justice Moore-Bick gave the judgment. Lord Justices McFarlane and Briggs agreed.

1. Construction of the detention authority. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 permitted detention after notice of a decision to make a deportation order, pending the making of that order. The IS91 contained both the notice and the authority to detain. Its terms authorised detention until the deportation order was made or an appeal was finally determined in the appellant’s favour.
2. Effect of the successful appeal. Any infringement of personal liberty required clear justification. The warrant therefore had to be construed in favour of liberty. The appellant’s appeal was finally determined in her favour when the time for appealing to the Upper Tribunal expired on 20 January 2011. The warrant then lapsed. Although an appeal could become pending again if permission to appeal out of time were granted, as explained in [2004] EWCA Civ 1087, that did not revive the warrant. The wording did not expressly authorise a later or intermittent period of detention. Reading it as ambulatory would produce uncertainty, particularly where permission was sought after a substantial delay. The court did not need to decide whether the statute permitted such a warrant in principle.
3. Detention Reviews. The published review procedure was an essential procedural safeguard, but it was not the source of the statutory power to detain. The distinction in [2011] UKSC 23 between the initial detention decision and reviews of continued detention supported the conclusion that a review could not itself constitute a fresh exercise of the statutory power. Once the original authority had lapsed, the detention facility held no valid authority for continued detention. The argument that insistence on a fresh formal authority allowed form to triumph over substance was rejected.
4. Disposition. There was no lawful authority for the appellant’s detention after 20 January 2011. The appeal was allowed and the Secretary of State’s cross-appeal was dismissed.

1. Court of Appeal (Civil Division): Appeal allowed and the Secretary of State’s cross-appeal dismissed. The detention authority lapsed on 20 January 2011, and the Detention Reviews did not constitute fresh statutory authority.
2. High Court of Justice, Administrative Court: In [2014] EWHC 1169 (Admin), the court declared detention unlawful from 20 January to 17 February 2011 and from 2 September 2011 to 7 March 2012, directed assessment of damages, and awarded 50% of the appellant’s costs.