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

Immigration detention must be assessed by the court for legality, having regard to the Secretary of State’s policy and the requirement to consider reasonable alternatives. A decision-maker must make a measured, fact-sensitive assessment of absconding risk. Relevant matters include attempts to leave voluntarily, previous compliance, family ties and ongoing claims or proceedings. Unsupported conclusions that an individual has disregarded immigration control, or will not comply with reporting conditions, are inadequate. Where proper consideration of those matters would not establish lawful detention, the detainee is not confined to nominal damages merely because the detention reviews were defective.

The claimant, a Nigerian national whose immigration leave had expired, challenged her detention between 14 March and 14 April 2017 pending removal. She had made several unsuccessful attempts to leave voluntarily, including attempts affected by the Home Office’s failure to provide her passport. The Secretary of State accepted that detention after 14 March was unlawful because the reviews failed to consider relevant matters, but maintained that the initial detention was lawful and that damages should be nominal.

The issues were whether the detention was lawful throughout and whether the claimant’s recovery was limited to nominal damages.

1. Outcome. The claimant was unlawfully detained from 14 March to 14 April 2017. The claim for damages was not limited to nominal damages. Directions were to be given for assessment of damages.
2. The court determined the legality of detention for itself. Detention had to comply with the Secretary of State’s published policy in Chapter 55 of the Enforcement Instructions and Guidance, as well as the Hardial Singh principles identified in [1984] 1 WLR 704. Those principles require detention to be for the purpose of removal, for no longer than reasonably necessary, and to be pursued with reasonable expedition.
3. Chapter 55 required a presumption in favour of temporary admission or release, strong grounds for believing that the person would not comply with conditions, consideration of all relevant factors, and consideration of all reasonable alternatives. The assessment had to be measured and fact-sensitive. The claimant’s repeated attempts to leave voluntarily, later compliance with reporting requirements, family ties and continuing compensation dispute all pointed against a material risk of absconding.
4. The detention reviews relied on standardised conclusions which did not reflect the evidence. The initial detention documents similarly failed to establish why detention, rather than reporting or another alternative, was necessary. The claimant’s statement that she would not pursue voluntary departure until her compensation claim was addressed did not justify an inference that she would abscond.
5. The Secretary of State’s reliance on R (SK (Zimbabwe)) v Home Secretary [2011] 1 WLR 1299 did not assist. That case concerned the possible relevance to damages of proving that lawful reviews would have led to continued detention. Here, the Secretary of State could not show that detention would have complied with her policy after the relevant matters were taken into account. The circumstances therefore did not justify nominal damages.