JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department

Section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 does not permit the Secretary of State to require a person to tell foreign officials that he agrees to return voluntarily where that is untrue. The statutory list of specified actions is comprehensive, and a requirement to make such a statement cannot be treated as consent to an application or as answering an interview question accurately.

Immigration detention must satisfy the Hardial Singh principles. A refusal of voluntary return is not a trump card. Where the receiving state will not accept an unwilling returnee, continued detention requires a realistic and sufficient prospect of removal within a reasonable time. Detention was unlawful where the Secretary of State failed to act with reasonable diligence and there was no such prospect.

The claimant, a Zimbabwean national subject to automatic deportation after a criminal conviction, was detained under immigration powers between May 2013 and May 2016, apart from a period served in custody for a section 35 offence. Zimbabwe would not issue an extraordinary travel document to nationals unwilling to return.

He sought declarations concerning the lawfulness of requirements imposed under section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, damages for false imprisonment, and damages under Article 5 of the Convention. The central issues were whether he could lawfully be required to say that he agreed to return voluntarily and whether his detention complied with the Hardial Singh principles.

1. Section 35 requirement. Section 35(2) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 was intended to provide a comprehensive list of the types of action which could properly be required. Section 35(1) could not be used to impose an additional requirement merely because it might facilitate removal.
2. The requirement that the claimant tell Zimbabwean officials that he agreed to return voluntarily did not fall within section 35(2)(d). He had consented to the application for an extraordinary travel document and had attended the interview. His refusal to say that he was willing to return was not refusal to consent to the application. Section 35(2)(g) required accurate and complete answers, and he could not accurately have stated that he was willing to return when he was not.
3. The court therefore declared that the Secretary of State could not lawfully require the claimant, under section 35, to tell Zimbabwean officials that he agreed to return voluntarily. The court did not need to decide the claimant’s alternative argument concerning reasonable excuse. It held that the Court of Appeal’s approach in R v Tabnak showed that subjective unwillingness alone would not constitute reasonable excuse where the requirement was otherwise lawful.
4. Detention. Applying the principles stated in R (Lumba) v Secretary of State for the Home Department, the claimant was a medium, rather than high, absconding risk. His refusal of voluntary return did not establish deliberate obstruction and could not justify detention for an unlimited period. There was no realistic prospect during the material period that Zimbabwe would change its policy and accept his return.
5. The Secretary of State knew, or ought to have known, by 28 January 2015 at the latest that the claimant would not be accepted as a voluntary returnee. Section 35 could not provide a lawful basis for continuing detention in those circumstances. Independently, the unexplained delay between February and October 2014 breached Hardial Singh principle (iv). The claimant was unlawfully detained from 15 July 2014 to 26 May 2016, excluding the period of his criminal sentence.
6. The claimant could not recover damages for the period of imprisonment imposed after his guilty plea to the section 35 offence. The principles against collateral attack and ex turpi causa barred that claim. The detention claim otherwise warranted substantial rather than nominal damages. The Article 5 claim was not determined because it would produce no different result.

The court also made observations, obiter, that section 35 might in some cases be relevant to the assessment of deliberate obstruction and the Hardial Singh balance, but could not justify detention which would otherwise be unlawful. Any use would be fact-sensitive; serial prosecution “as many times as it takes” would be inimical to the rule of law.

First-instance judicial review proceedings. The judgment records earlier interim and permission orders in the Administrative Court but no appeal from a lower court decision.