Miyanji v Secretary of State for the Home Department

The lawfulness of immigration detention pending deportation depends on the Hardial Singh principles and all the circumstances known to the Secretary of State at the relevant time. Risk of absconding, reoffending and serious harm may be of paramount importance, but none is an automatic answer to prolonged detention. Non-cooperation may justify extended detention, yet cannot justify indefinite detention where there is no sufficient prospect of removal within a reasonable period. A reformulation of detention guidance does not trigger the public sector equality duty where it merely makes an existing qualification explicit. The court must assess the legality of each period objectively, without hindsight.

The claimant sought damages for unlawful immigration detention. He had been detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 for approximately four years and seven months pending deportation to Kenya. Removal depended on an emergency travel document, but the claimant repeatedly refused to attend interviews with the Kenyan High Commission.

He alleged breaches of the Hardial Singh principles, an improper purpose, and reliance on an unlawful policy concerning serious mental illness. The central issues were whether continued detention remained lawful at each stage, whether the detention was maintained to advance a prosecution rather than removal, and whether paragraph 55.10 of the Enforcement Instructions and Guidance had unlawfully changed.

1. Outcome. The claim succeeded only in part. Detention was lawful from 6 May 2009 until 1 November 2012, unlawful from 1 November 2012 until 6 March 2013, and lawful thereafter until release on bail. The improper-purpose and unlawful-policy grounds failed.
2. The power under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 was subject to the four Hardial Singh principles: the Secretary of State must intend removal and detain only for that purpose; detention must last no longer than reasonable; detention must cease when removal cannot be effected within a reasonable period; and reasonable diligence and expedition must be used.
3. Applying Lumba v Secretary of State for the Home Department [2012] 1 AC 245, the burden was on the Secretary of State to establish lawful justification. The relevant assessment included the length of detention, obstacles to removal, diligence, detention conditions, effects on the detainee and family, risk of absconding, and risk of criminal offending. Risks of absconding and reoffending were highly important but did not automatically outweigh the length of detention.
4. The claimant’s repeated refusal to cooperate was significant and explained much of the delay. It could support prolonged detention, particularly where the claimant could end detention by cooperating, but it could not justify indefinite detention. By 1 November 2012, the proposed prosecution had not progressed, the Kenyan interview remained unavailable, and there was no realistic plan capable of producing removal within a reasonable period. The balance therefore required release.
5. By 6 March 2013, information from the Foreign and Commonwealth Office gave a sufficient prospect of removal within a reasonable period. The court was slow to second-guess executive assessments of a foreign government’s likely response. Continued detention thereafter remained lawful because the Secretary of State acted with reasonable diligence.
6. The reference to progressing a prosecution under section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 did not establish an improper purpose. Read in context, the prosecution was treated as a means of encouraging cooperation with removal.
7. The August 2010 reformulation of paragraph 55.10 did not change the policy. Following LE (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 597 and R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45, it made explicit a qualification already implicit. The public sector equality duty under section 149 of the Equality Act 2010 was therefore not triggered.
8. The evidence showed that the claimant’s depression and self-harm history were being satisfactorily managed in detention. The policy was not engaged, and the Secretary of State was entitled to conclude that detention remained appropriate.

First-instance decision. No earlier decision in the same litigation is stated.