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

After a deportation order has been revoked, the Secretary of State must make a fresh decision to deport before making another order. No change of circumstances is required. Although the statutory duty to make an automatic deportation order is discharged when the first order is made, the policy favouring deportation remains relevant.

A detainee’s deception or evasion cannot bar a challenge to the legality of detention. It may, however, affect the reasonable-period assessment under the Hardial Singh principles. The Secretary of State must still justify detention and must recognise when removal has ceased to be a practical prospect.

The Secretary of State appealed against two judgments of HHJ Bidder QC, reported as [2014] EWHC 3894 (Admin) and [2015] EWHC 1748 (Admin). The judge had quashed a second deportation order, held that periods of the respondent foreign criminal’s detention were unlawful, and awarded £50,000 for 293 days of unlawful detention.

The respondent’s nationality remained unresolved after Portugal refused to receive him and Jamaican and United States enquiries proved inconclusive. His accounts of his identity and personal history contained significant inconsistencies. The central issues were whether a second deportation decision required changed circumstances and how alleged deception or evasion affected the Hardial Singh assessment of the permissible period of detention.

1. Appeal allowed and retrial ordered. The decision below was quashed. The lawfulness of the respondent’s detention from 20 January to 13 November 2013 was remitted for retrial. Gloster LJ agreed with Irwin LJ.

2. The duty under section 32(5) of the UK Borders Act 2007 is discharged when a deportation order is made. It does not compel the Secretary of State to make an unlimited succession of orders following revocation. Nevertheless, the Act expresses a weighty policy favouring the deportation of foreign criminals, reinforced by the statutory restrictions upon revocation.

3. Where a deportation order has been revoked, a fresh decision to deport is required before another order is made. The decision, rather than the order, engages the statutory right of appeal. A second order made without a fresh decision would improperly leave judicial review as the person’s first resort.

4. A fresh decision does not invariably require fresh or changed circumstances. An order may have been revoked because of error, technical necessity, or the need to consider allegedly fresh material. If further investigation reveals no material change, the Secretary of State may properly make a new decision and order. The July 2013 decision was therefore lawful.

5. Deception or evasion about identity cannot invoke ex turpi causa non oritur actio so as to prevent a person from seeking release or establishing whether detention is lawful. Such a bar would undermine the rule of law.

6. Deception or evasion may nevertheless be highly relevant to the third Hardial Singh principle. It may affect both what constitutes a reasonable period of detention and whether deportation remains capable of being effected. The court must examine the alleged conduct and its practical implications carefully.

7. Deception does not relieve the Secretary of State of the obligation to justify detention and cannot turn detention into punishment. Detention becomes unlawful when, on a reasonable assessment, the deception has frustrated removal and removal is no longer a practical prospect. The judge had failed to make the necessary factual findings and apply that analysis.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal, quashed the decision below and remitted for retrial the lawfulness of detention from 20 January to 13 November 2013: [2017] EWCA Civ 48.
2. High Court: HHJ Bidder QC quashed the deportation order and held that the respondent’s detention was unlawful during the material periods: [2014] EWHC 3894 (Admin).
3. High Court: HHJ Bidder QC awarded nominal damages for the earlier period and £50,000 for the final 293 days of unlawful detention: [2015] EWHC 1748 (Admin).