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

Removal from association in an immigration removal centre is lawful only where it is necessary in the interests of security or safety, and necessary to prevent association with other detainees. The decision must be authorised by a person with appropriate independence from the centre’s management. Continued removal beyond 24 hours requires actual authority from the Secretary of State; the absence of that authority is substantive unlawfulness, not a technical defect. The governing rule need not be supplemented by a policy statement, but clear practical guidance is required. Removal from association may engage Article 8 where it interferes with personal autonomy. An unlawful continuation cannot be justified under Article 8(2).

The claimant, an immigration overstayer detained at Yarl’s Wood removal centre, was removed from association for approximately 27½ to 28 hours before an intended removal from the United Kingdom. The initial 24-hour period was authorised by the Home Office contract monitor. The form recording the proposed extension beyond 24 hours contained reasons but no signed authorisation.

She challenged the lawfulness of the removal on grounds concerning authorisation, procedural fairness, absence of published policy, irrationality and Article 8. The central issues were whether the initial and continued removal complied with rule 40 of the Detention Centre Rules 2001, whether a policy or guidance document was required, and whether the continuation unlawfully interfered with private life.

1. Initial removal. Under rule 40 of the Detention Centre Rules 2001, the controlling threshold is necessity in the interests of security or safety, including necessity for the detainee not to associate with others. In a contracted-out centre, authority ordinarily rests with the Secretary of State. The power may be exercised under the Carltona principle by an official, provided the official is independent of the centre’s management. Physical location outside the centre and a particular level of seniority are not absolute requirements. A statutory contract monitor may possess sufficient independence and status.

2. The initial authorisation was lawful. In the absence of evidence to the contrary, the authorising official was entitled to adopt the reasons already recorded on the form as her own. The reasons therefore satisfied the requirement for recorded reasons.

3. Continuation beyond 24 hours. Rule 40(3) required actual authority from the Secretary of State. The unsigned authorisation section of the form did not establish that authority had been given. The continuation after 12.30 on 2 August 2016 was therefore unlawful. The defect was not merely procedural or technical, because the independent authorisation was a fundamental safeguard.

4. The court declined to determine whether common-law procedural fairness required an opportunity to make representations before continuation beyond 24 hours. The issue was unnecessary to the result, although the reasoning on procedural fairness in Bourgass v Secretary of State for Justice was treated as highly authoritative despite being technically obiter.

5. The absence of a policy document was not unlawful because rule 40 itself was clear and there was no secret policy contradicting a published one. Nevertheless, practical guidance was needed on matters including decision-making, recording reasons and opportunities for representations.

6. The period of removal engaged Article 8(1) because it interfered with physical and psychological integrity and personal autonomy. Since the continuation was not in accordance with law, it could not be justified under Article 8(2). Permission was granted on that ground only for the period after 12.30 on 2 August. No damages were awarded because the declaration afforded just satisfaction.

First-instance judicial review proceedings. The court dismissed the challenges concerning the absence of a policy and the initial 24-hour authorisation, declined to determine the procedural-fairness ground, and allowed the challenge to continuation beyond 24 hours.