B & Ors v The Home Office

Detention of children pending deportation must comply with the Secretary of State’s statutory powers, applicable policy and the Hardial Singh principles. Children may be detained only as a last resort, after reasonable alternatives have been considered and sensibly discounted, and for the shortest reasonable period. A failure to follow the applicable policy renders detention unlawful unless there is good reason for departing from it. The court assesses the lawfulness of detention by reference to facts known at the time, with particular urgency required where children are detained. The Secretary of State bears the burden of proving lawful detention. A hypothetical question about whether detention would nevertheless have occurred is relevant to damages, but not to whether the tort of false imprisonment was committed.

The claimants, a mother and her three children, sought declarations and damages for false imprisonment arising from two periods of immigration detention pending deportation. The family had been subject to deportation orders following the father’s criminal convictions. The children were detained with their mother from 12 September to 7 November 2008 and from 19 December 2008 to 18 February 2009.

The claimants contended that the Secretary of State had failed to comply with her policy on the detention of children and had detained them for longer than permitted by the Hardial Singh principles. The central issues were whether the decisions to detain were lawful and, if not, what consequences followed for damages.

1. Claim succeeded. The entire first and second periods of detention were unlawful. Judgment was entered for the claimants, with declarations to that effect. Quantum was adjourned for directions or agreement.
2. Paragraph 2(2) and (3) of Schedule 3 to the Immigration Act 1971 conferred a power to detain pending deportation, but the power was constrained by the Secretary of State’s formulated policy, domestic and Strasbourg law, and the requirements of article 5 of the ECHR.
3. The policy in force in 2008-09 required the welfare of each child to be considered, all reasonable alternatives to detention to be considered and sensibly discounted, and detention to last only as long as necessary. The policy reflected articles 3 and 37(b) of the UNCRC, under which detention of a child must be a last resort and for the shortest appropriate time.
4. The Secretary of State failed to show that alternatives, including self check-in arrangements, had been considered before detaining the mother and children. The reasons relied upon principally concerned the father’s risk of absconding and did not explain why detention of the mother or children was necessary. The same evidential failure applied to the re-detention in December 2008.
5. The Hardial Singh principles require detention to remain reasonable in all the circumstances and permit detention only where removal can be effected within a reasonable time. Relevant factors include cooperation, absconding and reoffending risks, the detainee’s medical condition, and the Secretary of State’s diligence. There is no universal time limit, but particular despatch is required where children are detained.
6. Lawfulness was assessed by reference to facts known when the decision was made. Later conduct could not retrospectively justify the original decisions, although it could be relevant to the hypothetical assessment of damages. The burden of proving that lawful detention would nevertheless have occurred lay on the Secretary of State. That issue affected relief, not breach.