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

The automatic deportation regime applies to a person who is not a British citizen and satisfies the conviction and sentence conditions. It includes a person who is stateless or presently irremovable. Sections 32 and 33 of the UK Borders Act 2007 contain no additional statelessness exception, and the court cannot rewrite clear statutory language to avoid an alleged anomaly.

The first Hardial Singh principle concerns the decision-maker’s intention and purpose. The legality or manner of attempted removal may instead bear on the later detention principles. Each period of detention must be assessed objectively, including whether removal remains realistically possible within a reasonable time. Appellate disagreement with factual evaluation is insufficient without demonstrable error.

The appellant, a non-British citizen convicted of aggravated burglary and sentenced to eight years’ imprisonment, was made subject to an automatic deportation order under section 32(5) of the UK Borders Act 2007. He was detained from February 2014 until June 2015. An attempted removal to Uganda failed, and the respondent later accepted that the appellant was, in effect, stateless. The deportation order was revoked in 2019.

The appellant claimed damages for false imprisonment. Sweeney J dismissed the claim, holding that the deportation order was lawful and that detention complied with the Hardial Singh principles, apart from a conceded period caused by a failure to review detention. The appeal concerned the order’s validity, the purpose and duration of detention, and the effect of delay in producing the judgment.

1. Appeal dismissed. Lord Justice Lewis gave the judgment, with Bean LJ and Asplin LJ agreeing. The deportation order was lawful and supplied lawful authority for detention, apart from the period between 17 March and 10 April 2014, which was conceded to be unlawful.
2. Under section 32(1) of the UK Borders Act 2007, foreign criminal means a person who is not a British citizen, has been convicted in the United Kingdom, and satisfies the relevant sentence or offence condition. The phrase includes a stateless person. Section 32(5) imposes a mandatory duty to make a deportation order, subject only to the statutory exceptions in section 33. Those exceptions contain no additional exception for stateless or presently irremovable persons. Section 33(7) confirms that an exception does not prevent an order being made. A deportation order may therefore be lawful even where removal cannot presently be effected.
3. The respondent’s later decision to revoke the order under section 34(4) was not a legitimate aid to statutory interpretation. The court expressed no concluded view on whether that revocation was correct, but it could not alter the meaning of section 32.
4. The first Hardial Singh principle was satisfied. The respondent intended to deport the appellant and detained him to facilitate that purpose. Complaints about the information supplied when seeking approval for removal, or about the legality of the removal process, did not negative that intention. Such matters could be relevant to the second and third principles.
5. The second and third principles require an objective assessment of every period of detention. The detention must remain reasonable in all the circumstances, and must cease when removal within a reasonable time is no longer realistically achievable. The judge considered the appellant’s risks, the obstacles to removal, the failed removal attempt, the subsequent ETD process and the detention reviews. His conclusions were open to him. A fourth ground based on delay in producing judgment also failed: delay alone is insufficient, although the court must exercise special care when reviewing factual findings and reasoning.

• Court of Appeal (Civil Division): appeal dismissed. [2024] EWCA Civ 182
• High Court of Justice, King’s Bench Division: Sweeney J dismissed the false imprisonment claim, holding that the deportation order and detention were lawful apart from the conceded review period. [2022] EWHC 3120 (KB)