The Secretary of State for the Home Department v JM (Zimbabwe)

Under the Asylum and Immigration (Treatment of Claimants) Act 2004, section 35 confers a general power to require specified action to facilitate removal. The specific forms of action in subsection (2) are examples, not an exhaustive code, but their express or implied limits constrain the general power. The Secretary of State cannot therefore require a person to tell foreign officials that he agrees to return voluntarily when that is untrue. Such a requirement conflicts with the duty under subsection (2)(g) to answer interview questions accurately and completely. Immigration detention remains subject to the Hardial Singh principles. Once it is clear that removal cannot occur within a reasonable time, continued detention is unlawful.

The respondent, a Zimbabwean national, was subject to an automatic deportation order and was detained pending removal. Zimbabwe would issue an extraordinary travel document only to a person expressing willingness to return. The Secretary of State served notices under section 35 of the Asylum and Immigration (Treatment of Claimants) Act 2004, requiring attendance at interview and agreement or consent to return. The respondent refused, truthfully stating that he did not wish to return.

The High Court declared the requirement unlawful and awarded substantial damages for unlawful detention, excluding a period when the respondent was imprisoned: [2016] EWHC 1773 (Admin). The appeal concerned the construction and application of section 35 and the application of the Hardial Singh principles to the detention.

The appeal was dismissed. The declaration that the Secretary of State could not require the respondent to tell Zimbabwean officials that he agreed to return voluntarily, and the award of substantial damages for unlawful detention, were upheld.

1. Construction of section 35. The words “in particular” in subsection (2) introduce examples rather than an exhaustive list. However, subsection (2) identifies specific areas of action and their express or implied limitations. Applying the principle that general provisions do not override specific provisions, the general power in subsection (1) cannot be used to defeat those limitations.
2. Accurate answers. Subsection (2)(g) permits a requirement to attend an interview and answer questions accurately and completely. It does not permit a requirement that a person who is unwilling to return voluntarily tell foreign officials that he is willing to do so. The words “consent” and “agreement” in the notices were inherently ambiguous in the circumstances. If they required the respondent to state that he was willing to return, they required him to lie. Subsection (2)(d) did not assist the Secretary of State: consent to or cooperation with an application did not guarantee its success and could not override subsection (2)(g).
3. Detention. Detention under section 36(2) of the UK Borders Act 2007 was subject to the common-law principles stated in R v Governor of Durham Prison ex parte Hardial Singh and reformulated in R (Lumba) v SSHD [2011] UKSC 12. By 28 January 2015 it was clear that the respondent was not a voluntary returnee and that removal could not be effected within a reasonable period. Continued detention thereafter breached principle (iii). The respondent’s refusal to make an unlawful statement could not be characterised as deliberate obstruction. Any obstruction was at the lower end of the relevant spectrum.
4. Appellate approach. The court may conveniently consider the Hardial Singh principles in the order (i), (iii), (iv), (ii), beginning with the realistic prospect of removal. Once principle (iii) was breached, the reasonable period under principle (ii) was essentially academic. An appellate court should rarely interfere with a careful first-instance assessment unless it is inconsistent with the primary facts, based on an incorrect understanding of the law, or not reasonably open on the evidence.
5. The Secretary of State’s failure to act with reasonable diligence and expedition was causative. The relevant question was whether earlier diligence would have revealed earlier that removal was not realistically possible, not whether the respondent would have consented to removal earlier.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the declaration and substantial damages order, [2017] EWCA Civ 1669.
• High Court of Justice, Queen’s Bench Division: declared the section 35 requirement unlawful and awarded substantial damages for unlawful detention, [2016] EWHC 1773 (Admin).