Audi Dama Masozera Johnson v Secretary of State for the Home Department

Immigration detention is lawful where the Secretary of State intends to deport the detainee, uses detention only for that purpose, and objectively has a sufficient prospect of removal within a reasonable period. The prospect need not have a predictable removal date. The statutory definition of a “foreign criminal” in section 32 of the UK Borders Act 2007 turns on whether the person is not a British citizen, not on whether removal is immediately possible or the person is a national of a foreign state.

A course of conduct constitutes harassment only where it is targeted, occurs on at least two occasions, is objectively calculated to cause alarm or distress, and is objectively oppressive and unacceptable, assessed in context. Properly considered restraints used during an attempted removal did not meet that threshold.

The claimant brought a claim for false imprisonment arising from immigration detention between 16 February 2014 and 19 June 2015. He also claimed harassment concerning an attempted removal to Uganda between 9 and 11 December 2014.

The defendant accepted that the first detention review had not been carried out in accordance with policy, making detention unlawful between 17 March and 10 April 2014. The principal issues were whether the deportation order was invalid because the claimant was, or became, stateless; whether detention breached the first Hardial Singh principle; and whether there was a sufficient prospect of removal within a reasonable period.

1. Harassment. The claim was dismissed. The statutory elements required a course of conduct on at least two occasions, targeted at the claimant, objectively calculated to cause alarm or distress, and objectively oppressive and unacceptable. Context was material. The removal team had properly assessed the claimant’s risks, used a waist restraint belt in the restricted position, permitted communication, and acted professionally. The conduct was reasonable and did not cross the threshold of harassment.
2. Deportation order. Section 32 of the UK Borders Act 2007 did not exclude a non-British citizen merely because removal was factually impossible or because the person was stateless. Its plain meaning asked whether the person was not a British citizen. That construction did not produce absurdity requiring judicial redrafting. The claimant was therefore a foreign criminal, Condition 1 applied, and the deportation order was mandatory and remained lawful.
3. The claimant’s later recognition as stateless was on de facto grounds. It did not establish that he had been de jure stateless when the order was made or during detention. The defendant had reasonably believed throughout that he was Ugandan, removable, and subject to automatic deportation.
4. Hardial Singh 1. The defendant intended to deport the claimant and used detention only for that purpose. The court therefore rejected this head of claim. It was unnecessary to decide whether the proposed removal process was unlawful or non-justiciable.
5. Hardial Singh 2 and 3. The court assessed the position prospectively and by reference to all circumstances known at each review. Relevant factors included detention length, obstacles to removal, absconding and reoffending risks, diligence, detention conditions, and effects on the claimant and his family. A realistic prospect of removal could exist without a predictable date or certainty of removal. Those principles were satisfied throughout, except for the admitted period from 17 March to 10 April 2014. Had detention continued materially beyond 18 June 2015, the conclusion would have been different.

The remaining claims were dismissed. The parties were directed to draft a suggested order addressing damages and costs.