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

Detention to secure an emergency travel document may facilitate deportation even where actual removal is not imminent. Where a person subject to deportation is already on bail, however, the general detention power cannot be used to re-detain that person while the bail order remains in force. Re-detention must comply with the statutory conditions governing arrest and detention of a person on bail. An unlawfully imposed detention may nevertheless attract only declaratory relief where lawful detention could properly have been imposed and further relief would provide no practical benefit.

The claimant, a foreign national liable to deportation, challenged the lawfulness of his detention between 6 and 9 July 2015. He had previously been granted bail by the First-tier Tribunal, subject to reporting and other conditions. The defendant detained him so that he could be interviewed by Nigerian officials for the purpose of obtaining an emergency travel document.

The claimant contended that the detention was unlawful because he remained on bail and because removal was not imminent. The court considered the statutory detention and bail provisions in Schedules 2 and 3 to the Immigration Act 1971, together with the Hardial Singh principles.

1. Purpose and imminence. The obtaining of an emergency travel document is essential to deportation where the deportee lacks valid documentation. Detention may therefore lawfully be used to secure an interview for that purpose where there is good reason to believe that an uncooperative person will not attend unless detained. The Hardial Singh principles do not require actual deportation to be imminent.
2. Statutory scheme. The claimant’s detention power arose under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. Paragraph 2(4A) applied the specified bail provisions in Schedule 2, but did not import the general detention power in paragraph 16 of Schedule 2.
3. Continuing bail. The First-tier Tribunal’s bail order remained in force. The reporting condition did not terminate the bail, and there was no evidence of a subsequent grant of bail by a chief immigration officer. Paragraph 24 of Schedule 2 sets out the circumstances in which a person released on bail may be arrested and re-detained. The general power in paragraph 2(3) of Schedule 3 could not be used to bypass that scheme.
4. Authorities. The court considered the reasoning in S v Secretary of State for the Home Department and accepted that a general reassertion of the underlying detention power cannot ordinarily be used after release on tribunal bail. The approach in R (Lumba) v Secretary of State for the Home Department governed the question of relief.
5. Disposition. The re-detention was unlawful. Nevertheless, the immigration authorities could have detained the claimant under paragraph 24, and the court was satisfied that bail would not have been granted. The claimant was therefore entitled to a declaration that the detention was unlawfully imposed, but to no further relief.

This was a first-instance judicial review. Permission was granted by Deputy Judge Seys-Llewellyn on 26 November 2015. The judgment itself records no earlier substantive judgment or appeal.