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

Immigration detention under a deportation order must be used only for the statutory purpose of removal or departure. The Secretary of State may not detain a foreign criminal primarily to preserve the person’s presence in the United Kingdom for unresolved confiscation proceedings. Where a deportation order is in force under the UK Borders Act 2007, detention is generally required unless inappropriate, but remains subject to the Hardial Singh limits. Removal need not be immediate or imminent, provided there is an intention to remove and a real prospect of removal within a reasonable period. Detention becomes unlawful where its true purpose is collateral or where removal cannot reasonably be achieved within that period. Damages for unlawful detention remain compensatory; where lawful detention would have occurred in any event, only nominal damages are recoverable.

The claimant, a Nigerian national, had been convicted of serious criminal offences, sentenced to imprisonment and made subject to an automatic deportation order under section 32 of the UK Borders Act 2007. He wished to leave the United Kingdom on release from prison. The Secretary of State instead detained him under immigration powers because confiscation proceedings concerning the proceeds of his criminal conduct remained unresolved.

The claimant sought a declaration, damages for false imprisonment and relief under article 5 ECHR. The central issues were whether detention pending clarification or completion of confiscation proceedings was within the statutory purpose of immigration detention, whether it complied with the Hardial Singh principles, and what damages followed.

1. Statutory framework. Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 authorises detention pending removal or departure. Section 36(2) of the UK Borders Act 2007 creates a presumption, or duty, to exercise that power after a deportation order made under section 32(5), unless the Secretary of State considers detention inappropriate. The detention nevertheless remains subject to the limitations governing immigration detention.
2. Applicable principles. The court applied the principles stated in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and authoritatively restated in Lumba v SSHD [2011] UKSC 12: detention must be for the purpose of removal; it must last no longer than reasonable in all the circumstances; it must cease if removal cannot be achieved within a reasonable period; and the Secretary of State must act with reasonable diligence and expedition. Khadir v SSHD [2005] UKHL 39 establishes that removal need not be immediate or reasonably imminent if there is a prospect of removal within a reasonable period.
3. Application. The Secretary of State intended ultimately to deport the claimant, and removal was practicable. However, the focus of the detention decision was to prevent the claimant leaving before the confiscation process had been resolved. That was not a purpose permitted by the statutory power. The power had therefore been used for a collateral purpose and the detention was unlawful.
4. The court also held, as an additional and unnecessary ground, that detention pending resolution of the confiscation proceedings would not have been for a reasonable period in the circumstances, given the Secretary of State’s knowledge of the state of those proceedings.
5. Relief and damages. A declaration was granted that the claimant had been unlawfully detained for one day and 18 hours and 10 minutes. Applying the compensatory approach described in Lumba v SSHD [2011] UKSC 12, the court found that lawful detention pending removal would have occurred in any event. The claimant therefore suffered no compensatory loss and was awarded nominal damages of £1.