Jesus Alexander Rodriguez Martinez (by his kin and next friend Luisa Del Valle Martinez Hernandez) and another v Chief Immigration Officer (Trinidad and Tobago)

The statutory power to detain a person pending deportation applies only where a deportation order has been made against that person. A parent’s deportation order does not, without more, authorise detention of a child in the parent’s care. An administrative policy cannot supply the missing statutory authority. An interim injunction delaying removal does not by itself end detention pending deportation, since deportation may remain prospectively possible. The detention period must nevertheless be assessed case by case under the Hardial Singh principles, considering legal proceedings, delay, family impact, child welfare, absconding risk and possible release conditions.

A Venezuelan mother and her 15-year-old son entered Trinidad and Tobago clandestinely to seek asylum and were detained after quarantine orders expired. The mother became subject to a deportation order on 12 January 2021. No deportation order was made against the son until 16 March 2022. An interim constitutional order restrained removal while proceedings concerning their right to seek asylum remained pending.

The High Court refused habeas corpus relief, and the Court of Appeal dismissed the appeal, holding that the mother’s deportation order provided a lawful basis for detention of both appellants and that their continued detention was reasonable. The Privy Council considered whether section 16 of the Immigration Act authorised the son’s detention, whether the injunction prevented detention pending deportation, and whether the detention period was reasonable.

1. First ground allowed. Sections 2, 11 and 16 of the Immigration Act, read together, require the person detained to be the subject of a deportation order. The statutory references to the removal of “a person” and to an order against “such person” require separate consideration of each individual. The mother’s order did not extend to her son. The Ministry’s policy and practice could not create a power absent from the statute. The son’s detention from 15 December 2020 to 16 March 2022 was therefore unlawful, and a declaration was granted. The validity of the later order was left to the courts of Trinidad and Tobago.
2. Second ground dismissed. Detention under section 16 must remain pending deportation. An interim injunction preventing removal until constitutional proceedings are determined does not itself eliminate the prospect of deportation. Deportation remained possible if the constitutional challenge failed, and the injunction was not shown to have been intended to terminate detention.
3. Third ground allowed. The Hardial Singh principles, as stated in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, require detention to last no longer than is reasonable in all the circumstances. The assessment is forward-looking and must consider the likely time needed for deportation. The Board rejected any exclusionary rule requiring time spent on legal challenges to be disregarded. The weight given to that time is fact-sensitive and depends in particular on the merits of the challenge and responsibility for delay.
4. The Court of Appeal erred by treating detention as “self-induced”, by presuming the constitutional proceedings reasonable unless shown to be unreasonably protracted, and by treating court attention as sufficient. It also failed adequately to consider the effect of detention on the mother and child, the child’s welfare, their particular circumstances, and whether conditions under section 17(1) of the Immigration Act could address any risk of absconding. The reasonableness assessment was remitted to the High Court in Trinidad and Tobago.

• Privy Council: The first ground was allowed with a declaration that the son’s detention from 15 December 2020 to 16 March 2022 was unlawful. The second ground was dismissed. The third ground was allowed and the reasonableness issue was remitted to the High Court in Trinidad and Tobago.
• Court of Appeal of the Republic of Trinidad and Tobago: The appeal from the habeas corpus decision was dismissed. The court held that the mother’s deportation order provided a lawful basis for detention of both appellants and that their continued detention was reasonable.
• High Court of Trinidad and Tobago: Mohammed J refused habeas corpus relief, holding that the return to the writ demonstrated a lawful basis for detention under section 16 of the Immigration Act.