The Home Office v TR & Anor

Immigration detention is lawful only if the statutory conditions for detention are met. Under section 3(8) of the Immigration Act 1971, a person claiming to fall outside the Act’s controls because of British citizenship bears the burden of proving that status. Under paragraph 16(2) of Schedule 2, detention is lawful where there are reasonable grounds for suspecting that the person may be removed; actual removability need not be established.

The Hardial Singh principles limit detention to the period reasonably necessary to pursue removal, and require reasonable expedition. Commencing judicial review proceedings or obtaining a stay of removal does not, by itself, make detention unlawful. A first-instance judgment must contain adequate findings and reasoning on liability and damages.

The Home Office appealed against a Central London County Court judgment awarding TR damages for false imprisonment arising from immigration detention, and awarding JA damages for his detention as an infant British citizen. The County Court held that JA could not lawfully be detained because he was British, and that part of TR’s detention breached the Hardial Singh principles. It awarded £5,000 to JA and £20,000 to TR, including aggravated damages.

The appeal concerned the effect of British citizenship on detention, the proper application of paragraph 16(2) of Schedule 2 to the Immigration Act 1971, the impact of judicial review proceedings and a stay of removal on continued detention, and the adequacy of the reasoning supporting the damages award. TR also cross-appealed on the scope of her unlawful detention.

1. Appeal and cross-appeal allowed. The case was remitted to the County Court for rehearing by another judge because the relevant findings of fact and reasoning were inadequate.
2. JA was a British citizen by birth. Citizenship was acquired automatically and did not depend on the later addition of his father’s name to the birth certificate. However, the question under the Immigration Act 1971 was whether he fell outside the Act’s controls. Section 3(8) applied because he claimed to be outside the Schedule 2 detention controls by reason of citizenship. The burden therefore lay on him, realistically through his parents, to prove that status.
3. Paragraph 16(2) of Schedule 2 permitted detention where there were reasonable grounds for suspecting that the person might be removed. The statutory words “pending removal” identified the purpose of detention. They did not require removal actually to be effected, and did not merge the lawfulness of detention with the lawfulness of removal. The County Court had failed to ask the correct question or assess the evidence available to the Home Office at the material time.
4. The Hardial Singh principles remained controlling: detention must pursue removal, last no longer than reasonably necessary, cease where removal cannot be achieved within a reasonable period, and be pursued with reasonable expedition. Detention did not become unlawful merely because legal proceedings had begun or a stay of removal had been granted. The County Court had not explained why those events made removal impossible within a reasonable period.
5. The award of £20,000 to TR could not stand. The County Court had not explained how the figure was selected, how relevant factors were weighed, or what conduct justified aggravated damages. Its reasoning on the scope of TR’s detention was also inadequate. Both matters required rehearing.

• High Court (Queen's Bench Division): The appeal and cross-appeal from the Central London County Court were allowed. The claims were remitted to the County Court for rehearing by another judge.
• Central London County Court: HHJ Lamb QC awarded damages for false imprisonment, including £5,000 to JA and £20,000 to TR.