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

Detention under paragraph 16 of Schedule 2 to the Immigration Act 1971 is lawful while an arriving passenger is being examined and while the decision whether to cancel leave to enter remains pending. An unlawful cancellation decision does not retrospectively invalidate detention which was lawful for the examination.

Once the examination is complete and the cancellation decision is made, paragraph 16 no longer authorises detention. Continued detention requires another lawful basis. A short period of grace is an aspect of the Hardial Singh principles in removal cases, allowing practical release arrangements, but it is not available whenever lawful detention ends. It cannot justify detention maintained to effect removal under an unlawful cancellation decision where no release conditions are needed.

The appellant, a Pakistani student, arrived in the United Kingdom after being granted leave to enter for study. Border Force officers interviewed him, cancelled his leave to enter and arranged his removal. The appellant challenged the decisions and his detention.

The High Court, in [2023] EWHC 1828 (Admin), held that the cancellation decision was procedurally unfair but that the detention was lawful under paragraph 16 of Schedule 2 to the Immigration Act 1971. The cancellation finding was not challenged on appeal. The issue before the Court of Appeal was whether detention was lawful before and after the cancellation decision, and whether a period of grace could justify continued detention.

1. Appeal allowed. The Court proceeded on the unchallenged basis that cancellation of the appellant’s leave to enter was unlawful for procedural unfairness.
2. Detention was lawful from the beginning of the examination until the decision to cancel leave was made, at the latest by 02:32 on 10 September 2022. Paragraph 16 of Schedule 2 to the Immigration Act 1971 authorised detention pending examination and pending the decision whether to cancel leave. The later unlawfulness of the cancellation decision did not retrospectively invalidate detention which had been lawful for the examination.
3. Once the examination was complete and the cancellation decision had been made, paragraph 16 no longer authorised detention. The Secretary of State bore the burden of identifying another lawful basis. The principles in R (Lumba) v Secretary of State for the Home Department, [2011] UKSC 12, prevented reliance on a hypothetical power to detain lawfully. R (DN (Rwanda)) v Secretary of State for the Home Department, [2020] UKSC 7, confirmed that detention maintained for removal was unlawful where the underlying removal decision was unlawful.
4. The period-of-grace principle considered in R (AC (Algeria)) v Secretary of State for the Home Department, [2020] EWCA Civ 36, is an aspect of the Hardial Singh principles and permits only a short period for practical release arrangements in appropriate removal cases. It is not a general entitlement whenever lawful detention ends. It did not apply because the appellant was actually detained for removal following an unlawful cancellation decision, and no bail, accommodation or other release arrangements were required.
5. The appellant was unlawfully detained from 02:32 until 13:38, a period of between 11 and 12 hours. Detention lasting only hours is capable of amounting to unlawful detention. Applying the guidance in Thompson v Commissioner of Police for the Metropolis, [1998] QB 498, the Court rejected aggravated damages because the detention in an airport waiting room was neither harsh nor oppressive, and assessed damages at £4,500.

• Court of Appeal (Civil Division): allowed the appeal, declared that the appellant had been unlawfully detained for between 11 and 12 hours, and assessed damages at £4,500.
• High Court of Justice, King’s Bench Division, Administrative Court: in [2023] EWHC 1828 (Admin), held that cancellation of leave to enter was procedurally unfair but that detention under paragraph 16 of Schedule 2 to the Immigration Act 1971 was lawful.